Morseau v Police No. Scgrg-97-1419 Judgment No. S6451

[1997] SASC 6451

MORSEAU v POLICE

Bollen AJ

In this matter, I begin by congratulating counsel on each side on the thoroughness,  clearness and interesting nature of their addresses.  But, with all respect, I do not think the case demands the deep analysis to which it has been subjected.  Accordingly,  without taking time to express the reasons thoroughly, I will say a few words about what I think and give a  decision. 
The appellant was convicted of two counts of assault occasioning actual bodily harm at Paskeville on 30 November 1996.  Mr Pataki was the victim of the first alleged  assault and a Mr Birrell of the second.  Pataki was 72,   Birrell 68 and the appellant 36. 
The happening of the assaults was, in effect, admitted in evidence by the appellant.  He raised the issue  of self-defence.  The injuries alleged were not disputed.   Accordingly, the matter for consideration is the issue of self-defence.  The magistrate correctly noted at the top of p16 of his reasons that the onus is on the prosecution  to prove that the use of force was unlawful.  In other words, the law is that the prosecution must negate  self-defence. The defendant does not have to prove it if  he puts it forward as a defence.  Of course the defendant  must raise something on which self-defence can be founded  but he carries no onus of proof. 
The magistrate's reasoning has been attacked on the score that he has made findings of fact which are not justified by the evidence. His reasoning has been attacked on the score that he applied the wrong test to self-defence. I was sorry to see that some cold water was poured on the case of Morgan v Coleman (1981) 27 SASR 334. That, generally speaking, has been taken as the text according to Wells J in this court for a long time. It is true that it pre-dates Zecevic's case. It pre-dates the relevant statutory amendments to self-defence. But it is still a case of great value particularly on the issue that aggression can never become a defence.
In this case, the magistrate, after careful  consideration of the facts, and making the findings which I  think he was entitled to make, said at p16, speaking first of the first charge: 
"I am satisfied and so find the defendant's use of force was unlawful.  His punches to Mr Pataki were delivered in anger rather than through any endeavour to escape from  Mr Pataki's fowl house.  I am satisfied and so find in the defendant's mind he simply was not going to wait for anyone. He was intent upon taking his dog and himself  home. Apart from that, I am not persuaded that three punches to Mr Pataki can in any way be deemed reasonable force.   Mr Pataki was 72 years of age.  I am in no doubt  the defendant, a man of only 36 years of age, could simply  have pushed Mr Pataki out of the way.  The force used by  the defendant was, in my opinion, both unwarranted and  excessive."
It is said that there is demonstrated by that passage that the magistrate had proceeded by way of error in relation to the  test for self-defence.  I do not agree.  The magistrate is saying that in the first place there was nothing in the appellant's mind about belief of the need to use force to  escape. All that was in his mind was the intention not to  wait for anyone but to get himself out of the fowl house. 
Secondly the magistrate is saying that the appellant  could not have possibly have believed that it was necessary  to strike three punches to Mr Pataki in order to leave the  fowl house.  He had been, as the magistrate correctly  found, unlawfully imprisoned in the fowl house by Mr Pataki.  But the magistrate is saying that, in all the circumstances,  the appellant could not possibly have believed that he needed to strike three blows to escape.  He became an aggressor. That is the effect of the magistrate's  statements. 
In relation to the second count in the same way he  finds, and I refer to the passages at p.16 and 17 without  taking time to read them, to the fact that there was no  self-defence in this case although there was some general  hitting of each other.  He finds in the first place Mr Birrell was simply trying to defend himself.  It was the appellant who was the aggressor.  Later on he speaks about them falling on the ground.  He finds that the "kneeing" of Mr Birrell about three times by the appellant was something he could not possibly have believed was  necessary in order to escape. 
I should mention that the attack upon the findings of guilt, though, were more vigorously addressed to count 1  than count 2.  In the end, I think that the statement in  par13 of the respondent's outline of argument is correct. That statement is:  
"It is submitted, however, that the learned magistrate made findings of fact which were open upon the evidence but did  not avail the appellant of the defence of self-defence". 
This was not a situation of self-defence.  It was a situation in which a man became an aggressor, after being  detained in a fowl house.  I can see no fault, if I may say  so, in the magistrate's reasoning.  Perhaps his expression is  not as clear as it might have been.  But I see no  fault in his findings of fact.  The evidence was there to justify the findings.   I see no fault in his application of the test, nor in the application of the law related to  self-defence. 
He did not apply the subjective test.  I repeat.  He said that he found that the appellant could not possibly have believed that he needed to use the force that he did.  That  is the subjective test.
In these circumstances, the appeal against each  conviction must be dismissed. 
In further interesting submissions, Mr Charles submitted that the penalties, and the result, were  manifestly excessive.  He complained vigorously that the  order of imprisonment for nine months on count one, being  the same as the order on count two, was unreasonable and  manifestly excessive.
His point was that count two attracted nine months.  Perhaps one could justify that.  Indeed, there was no appeal about that.  But the first count was the count in  which the assault occurred after an unlawful imprisonment.  Putting it more simply, Mr Charles said that not too little credit was given for the existence of the unlawful  imprisonment. 
The respondent ingeniously argued that the second  offence was probably treated too leniently and that I  should leave well alone. 
         Again, these arguments were interesting. 
I think Mr Charles is right about count one.  I think  that the imprisonment for nine months is, in the whole of  the circumstances, manifest.  I allow the appeal to the  extent of setting aside the period of nine months  imprisonment ordered on count one, and substituting,  therefore, a period of six months imprisonment. 
The total period of imprisonment is, therefore, 15  months. I think the non parole period should be reduced to  nine months and the cumulative order will continue. I think  the magistrate was right to suspend the sentences. 
Appeals against conviction dismissed.  Appeal against sentence on count one allowed.  Penalty altered to six  months instead of nine months