NICHOLLS v Police - [2011] SASC 208

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NICHOLLS v POLICE
[2011] SASC 208
Judgment of The Honourable Justice White
2 December 2011
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DEFENCE OF PERSONS OR PROPERTY - DEFENCE OF PROPERTY
The appellant was convicted of aggravated assault, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), arising from an incident in which he shoved his former domestic partner, causing her to fall to the ground - the Magistrate rejected the appellant's claim that he had been acting in self-defence, and in the defence of property under ss 15 and 15A of the CLCA.
Whether the Magistrate had incorrectly applied the onus of proof; whether the Magistrate had given insufficient weight to the history of violent, abusive and unpredictable behaviour of the complainant in assessing whether it was reasonably possible that the appellant had genuinely believed his conduct to be necessary and reasonable to protect his property from unlawful interference.
Held: appeal allowed - conviction set aside - the Magistrate had correctly applied the onus of proof, but did not give adequate weight to the complainant's previous behaviour in assessing whether the appellant had acted for a defensive purpose - the appellant's actions were reasonably proportionate to the threat that he had believed to exist.
Criminal Law Consolidation Act 1935 (SA) s 5AA, s 15, s 15A, s 20(3), referred to.
R v Hajistassi (2010) 107 SASR 67, discussed.
Taylor v Hayes (1990) 53 SASR 282; Martin v Department of Transport, Energy and Infrastructure [2010] SASC 141, considered.

NICHOLLS v POLICE
[2011] SASC 208
Magistrates Appeal

WHITE J. On 23 May 2010, the appellant was taking access to his 3½ year old son (AF) from AF’s mother (the complainant). The appellant was at the passenger side rear door of his car, putting AF into a car seat. The complainant approached the car. The appellant told the complainant more than once to “get away from the car”. Despite this, the complainant opened the driver’s side rear door and leaned in for the apparent purpose of passing an ice block to AF. The appellant thereupon gave her a shove, causing her to fall to the ground. As a result of the fall the complainant suffered very minor injuries.
Arising out of those circumstances, the appellant was charged with aggravated assault.[1] The aggravated form of the offence was charged because the victim of the charged conduct was the appellant’s former domestic partner.[2]
[1] Criminal Law Consolidation Act 1935 (SA) (CLCA) s 20(3).
[2] CLCA, s 5AA(g).
The appellant pleaded not guilty. He raised self-defence[3] and defence of property[4] but was convicted. The Magistrate was satisfied both that the appellant did not genuinely believe that his conduct was necessary and reasonable for a defensive purpose and that he did not have a genuine belief that it was necessary for him to have acted as he did in order to protect himself or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] SASC 208
Decision Date: 2 December 2011

CaseChat Overview and Summary

The case of NICHOLLS v Police involved an appeal by the appellant against his conviction for aggravated assault, pursuant to s 20(3) of the Criminal Law Consolidation Act 1935 (SA). The appellant had shoved his former domestic partner, resulting in her falling to the ground. The Magistrate dismissed the appellant's claim that he had acted in self-defence or in defence of property, as per ss 15 and 15A of the CLCA.

The primary legal issues that the court had to address were whether the Magistrate correctly applied the principles of self-defence and defence of property, and whether the Magistrate had correctly assessed the evidence regarding the appellant's state of mind at the time of the incident. The court needed to determine whether the appellant had a genuine belief that he needed to act in self-defence or to protect his property and whether his actions were reasonable and proportionate to any perceived threat.

The Court of Appeal reviewed the evidence independently, noting that while it must give due weight to the Magistrate's advantage in seeing and hearing the witnesses, it is not precluded from making its own findings. The court found that the Magistrate had appropriately considered the evidence of the appellant's previous relationship with the complainant, noting that the complainant's history of abusive, threatening, and sometimes violent conduct was relevant to the assessment of the appellant's state of mind. The court concluded that the Magistrate had correctly found that the appellant did not genuinely believe that he needed to act in self-defence or to protect his property. The court also found that the Magistrate had correctly applied the principles of self-defence and defence of property, and that the appellant's conduct was not a reasonably proportionate response to any perceived threat.

The Court of Appeal allowed the appeal and quashed the appellant's conviction, ordering a retrial.

Orders

Orders of the court

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Background

Background to the litigation

The appeal is an appeal by way of rehearing. This Court is required to reach its own view of the case by making an independent review of the evidence before the Magistrate. It may allow the appeal even if there is evidence to support a Magistrate’s findings. The Court must of course give due weight to the advantage held by the Magistrate in seeing and hearing the witnesses. However, the fact that a Magistrate reaches his or her conclusion by an acceptance of the evidence of the witnesses of one party does not preclude this Court from carrying out its statutory function on appeal by way of rehearing. There may be cases in which incontrovertible facts or uncontested testimony or the glaring improbability of the Magistrate’s conclusion will, despite the Magistrate’s preference for the evidence of a particular witness, warrant this Court’s interference. Further, this Court can and should draw its own inferences from uncontested testimony or from facts found by the Magistrate which should not be disturbed. If, after having due regard to the advantage held by Magistrates in seeing and hearing witnesses, this Court reaches a different view on the evidence, it must give effect to that view by substituting its own conclusion for that of the Magistrate or, in an appropriate case, by remitting the matter to the Magistrate’s Court for rehearing before the same or a different Magistrate.[5][5] Taylor v Hayes (1990) 53 SASR 282 at 291-2; Martin v Department of Transport, Energy and Infrastructure [2010] SASC 141 at [37]-[38].Background Although the bare facts of the incident which I have recounted above were in effect common ground, there is a considerable background. Much of the evidence at trial was directed to that background as well as to the circumstances surrounding the appellant’s conduct on 23 May 2010. The appellant and the complainant had previously had a sexual relationship, and in 2006 had cohabited for some months. AF, who was born in September 2006, is a product of that relationship. There were a number of difficulties in the relationship while the appellant and the complainant were cohabiting. Since their separation, in about June 2006, the relationship between the appellant and the complainant has been acrimonious and hostile, resulting in considerable litigation in the Federal Magistrate’s Court in relation to the custody and access of AF. Although the Magistrate heard a considerable amount of evidence regarding the previous relationship between the complainant and the appellant, he did not make detailed findings on that topic. However, the Magistrate did indicate that he preferred the evidence of the appellant about these matters. On my reading of the transcript of evidence and the exhibits, that preference is understandable. The evidence concerning the complainant’s behaviour indicated abusive, unstable and sometimes violent conduct over a reasonably long period. In April 2006, the appellant and the complainant were on holiday in Port Douglas. The complainant became upset and distraught and, at one stage threatened, while holding a knife, to kill her unborn child.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J

The appellant also said that there had been occasions upon which the complainant had said that she would kick his car door.The Magistrate’s Decision The Magistrate summarised at length the evidence given in the trial. He regarded both the complainant and the appellant as unimpressive witnesses but the complainant more so than the appellant. He considered that the bitterness of the appellant and the complainant towards each other had coloured the accuracy of their recollections and had affected the reliability of each. The Magistrate said, however, that he was not prepared to accept the evidence of the complainant on a number of topics. In relation to the previous history between the appellant and complainant (to which the Magistrate referred as “the preliminary events”), the Magistrate said that he preferred the appellant’s account. The Magistrate said:[49]The evidence … satisfies me that the conduct of the alleged victim has from time to time been abusive, threatening and violent and that she has frequently breached Family Court orders. I was not satisfied that she had ever been violent towards [the appellant], or that she had previously damaged his property. I was left with the impression that her behaviour towards him was tolerated by him so that he could have access to their child. I have no doubt that her conduct resulted in him being angry, annoyed and frustrated especially as regards access arrangements. It was clear to me that she was not complying with the spirit of orders of the Family Court and that that was extremely upsetting to the defendant. Further, that her behaviour in making the defendant often wait for lengthy periods before handing over their child, against this background, made him apprehensive and anxious during handovers. The Magistrate then noted that the essential facts concerning the incident on 23 May 2010 were not really in dispute and made findings to the effect outlined earlier in these reasons. The Magistrate then considered the defence of self-defence and defence of property which had been raised by the appellant. He concluded at [51] that “nothing occurred or was said that indicated that the victim was about to, or intended to, assault or attack [the appellant] or damage or interfere with his property”. The Magistrate then expressed his conclusions regarding self-defence in the following passages:[52]Having given very careful consideration to the actions of the alleged victim and the evidence-in-chief and cross-examination of the defendant [I find] that the defendant, despite references to his concerns for his self or for his property in his evidence, had no genuine belief at the time that any threat to either existed. Indeed, in his own words, he was anxious to get her away from the car and leave. I say that, notwithstanding the background described earlier.[53]In my view, the defence of self-defence or defence or property simply does not arise in the circumstances of this case. If I am wrong in that assessment, I repeat that I do not accept that the defendant had a genuine belief that it was necessary for him to act as he did to protect himself or his property. Even if he did, his conduct was not necessary and reasonable and I would find that the prosecution had excluded any such defence beyond reasonable doubt.[54]It is my assessment quite frankly that when the defendant’s former partner did not comply with his request to get away from the car, that he simply took the matter to the next level and made physical contact with her which achieved his stated aim.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

Although there are some infelicities in expression in these paragraphs, their effect is plain. The Magistrate was satisfied that the appellant did not have the kind of belief to which s 15(1)(a) or s 15A(1)(i) of the CLCA refer, that is, a belief that his conduct was necessary and reasonable for a defensive purpose or to protect property from unlawful interference. Even if the appellant did have such a belief, the Magistrate considered that the appellant’s conduct was not a reasonably proportionate response to any threat which the appellant may have believed to exist.Consideration The appellant’s complaint that the Magistrate had misapplied the onus of proof can be addressed quite shortly. The appellant relied upon the sentence in [53] of the Magistrate’s reasons in which the Magistrate said:I do not accept that the defendant had a genuine belief that it was necessary for him to act as he did to protect himself or his property.The appellant’s submission was that by this sentence, the Magistrate had revealed an understanding that it was for him (the appellant) to satisfy the Court that he did have either of the beliefs to which s 15(1)(a) and s 15A(1)(a)(i) refer. Such a belief would have been erroneous because under both s 15 and s 15A of the CLCA, it is for the prosecution to disprove the defence. I agree that, read literally, the passage to which the appellant referred could indicate a mistaken belief as to where the onus of proof lay. However, I do not consider that that is a proper understanding of the Magistrate’s reasons. Earlier in his reasons, the Magistrate had directed himself appropriately as to both the location and standard of the burden of proof. Further, in the sentence which followed the passage on which the appellant now relies, the Magistrate referred to his finding that “the prosecution had excluded any such defence beyond reasonable doubt”. I do not consider it reasonable to suppose that in the space of two sentences, the Magistrate moved from a mistaken understanding concerning the burden of proof to a correct understanding. Instead, I consider that the sentence upon which the appellant relies is just a slip in the Magistrate’s manner of expression. However, other submissions of the appellant have more substance. I refer in particular to the Magistrate’s treatment of the complainant’s previous behaviour, including her conduct towards the appellant summarised earlier in these reasons. The previous relationship between a complainant and an accused will often be relevant in cases in which self-defence or defence or property is in issue. That is particularly so when a complainant has a history of violence, but is not confined to such cases. Evidence that a complainant is prone to act in an unstable, unpredictable or erratic fashion will be relevant to a number of matters, including the assessment by the trier of facts of the accused’s appreciation of the existence and extent of any danger. In R v Hajistassi,[6] David J and I discussed the relevance of a victim’s previous history of violence in the following passages:[6] [2010] SASC 111; (2010) 107 SASR 67.In a case in which self-defence is in issue, evidence may be admitted of the deceased’s previous record or history of violence, and of the relationship between the deceased and the accused or those who are close to the accused, such as family members. Evidence of violent conduct may be led even though the accused, at the time of the alleged offences, had no knowledge of it. As was pointed out by the Full Court of the Supreme Court of Victoria in Re Knowles, approving a passage from Wigmore:[When] a controversy arises whether the deceased was the aggressor, one’s persuasion will be more or less affected by the character of the deceased; it may throw much light on the probabilities of the deceased’s action … [the] additional element of communication is unnecessary; for the question is what the deceased probably did, not what the defendant probably thought the deceased was going to do. The enquiry is one of objective occurrence, not of subjective belief. [Emphasis in original]The evidence may be relevant in at least two ways. If the accused knew of the deceased’s history or reputation for violence, the evidence is relevant to the assessment of who was the aggressor in the confrontation and to the assessment of the accused’s appreciation of the danger he or she faced. If the accused did not know of the deceased’s history or reputation, then the evidence may still be relevant to the jury’s assessment of who was the aggressor at the relevant time. In that circumstance, as was pointed out in Re Knowles, the additional element of communication is unnecessary for the question is “what the deceased probably did, not what the accused thought the deceased was going to do”.The principle of public policy which precludes the prosecution from adducing evidence of the disposition or propensity of an accused person to act in the way alleged has no application in relation to a person other than the accused.[7](Citations omitted)Those remarks in Hajistassi were directed to evidence concerning the victim’s history of violence, but they are equally apposite to a history of unstable and unpredictable behaviour. Evidence concerning a complainant’s previous conduct may be relevant to the assessment of whether a defendant could have believed that seemingly benign conduct of a complainant raised a risk of damage to his or her property.[7] Ibid at [15]-[16]; 72-3.