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 his car and its contents.
[3] CLCA, s 15.
[4] CLCA, s 15A.
The appellant appeals against his conviction. The amended notice of appeal contains two grounds directed to the Magistrate’s consideration of the defence of property. The first relates to the Magistrate’s application of s 15A of the CLCA. The appellant contends that the Magistrate failed to appreciate that the complainant’s conduct in opening the car door and reaching inside was a form of interference with property for the purposes of s 15A(1)(a)(i) of the CLCA. The effect, so it was submitted, was that the Magistrate had failed to consider properly whether the prosecution had excluded as a reasonable possibility that he was acting in defence of property under s 15A.
The appellant also contends that the Magistrate misapplied s 15A by, in effect, reversing the onus of proof.
The second ground of appeal is that the conviction was unreasonable and unsupported by the evidence. The appellant contends that the Magistrate did not have proper regard to the history of violent, abusive and unpredictable behaviour by the complainant. He also complains about what is said to be the Magistrate’s acceptance of the complainant’s evidence, and rejection of his own.
Approach to Appeal
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.
On an occasion in about May 2006, the complainant punched the appellant.
An incident occurred in June 2006 when the appellant informed the complainant that he would not continue living with her. The complainant took a knife and threatened to harm herself. She made a small cut to her inner left wrist and had to be disarmed. The complainant was pregnant with AF at the time and the incident occurred in the presence of the appellant, and the complainant’s father. The complainant was taken to Modbury Hospital for treatment.
On 4 May 2007, the appellant was sharing a house with his sister. Because of illness he was in bed. The complainant went to the front door of the house and pushed her way inside. She abused the appellant’s sister before punching her three times to the head, pulling her hair and wrestling her to the floor. The appellant had to pull her away from his sister. The assault took place in the presence of the sister’s young son. Both the appellant and his sister gave evidence of this incident and it was reported to the police at the time. The complainant was prosecuted for assault and pleaded guilty.
As noted earlier, there has been considerable litigation in the Federal Magistrates Court. A Federal Magistrate has described the conduct of both the complainant and the appellant as lacking self-control and as being “lawless, discourteous [and] insolent”. On 6 November 2007 a Federal Magistrate issued, by consent, an injunction in the following terms:
The parties are restrained, and an injunction is hereby granted restraining each of them, from communicating with the other of them, whether by telephone or otherwise, save and except for the purpose of advising of any occasion on which the child has sustained an injury.
The very fact that an order in those terms was made by a court indicates the extent to which the relationship between the appellant and the complainant had deteriorated.
In early 2008, the appellant filed in the Federal Magistrates Court applications seeking to have the complainant dealt with for a “multiplicity” of contraventions of the order made on 6 November 2007. The Federal Magistrate dealt with two of the appellant’s allegations as representative counts. Those contraventions consisted of foul-mouthed communications from the complainant to the appellant on, as I understand it, 13 and 30 November 2007 respectively. The Federal Magistrate found both charges proved. In relation to the second contravention the Magistrate said:
The mother does not dispute that they were the words she used … The language is of the gutter. It is highly abusive; it is highly disrespectful; it is highly provocative. It is self‑evidently a wholly inappropriate way for one parent to conduct themselves towards another parent and it is self‑evidently a breach of the order.
Subsequently, on 21 August 2008, a Federal Magistrate required the complainant to enter into a bond in her own recognisance in the sum of $1,000 for a period of 12 months.
In her evidence before the Magistrate at trial, the complainant admitted to three other identified telephone conversations with the appellant in which, using coarse language, she had either abused him or wished him harm. The complainant went further and said that there had been so many calls that it was hard to distinguish between them:
[T]here’s been lots of phone calls throughout the Family Court proceedings. There’s been lots of phone calls and I have been very abusive in those phone calls and I’ve used foul language and I don’t know in which, the context of what you’re talking about with that particular call because I’m sure you have lots and lots of messages from me.
The appellant gave evidence of an incident on 20 May 2009 at the agreed location for the handover of AF. A verbal dispute developed during the course of which the complainant reached into his car, removed the keys from the ignition, and then threw them into some nearby bushes. The complainant denied this conduct but it seems that this was one of the events about which the Magistrate preferred the appellant’s evidence.
The complainant also referred to another incident, not involving the appellant, which resulted in her being charged with an assault by slapping. However, it is unclear from the evidence whether this charge was dismissed altogether, or that, after a finding of guilt, the matter was dismissed without the recording of a conviction under ss 16 or 39 of the Criminal Law (Sentencing) Act 1988 (SA). It also seems that this incident may have occurred when the complainant was very young.
The complainant admitted making a telephone call to the appellant on 3 October 2009 at 12.45 am in which she had said, “I’m going to get a can of petrol and set you [expletive deleted] alight. I am a crazy bitch. Be [expletive deleted] very afraid”.
The appellant also gave evidence about a number of other incidents including occasions when the complainant had thrown things about the house in which they were cohabiting, an incident at a handover of AF when the complainant had pushed a package of elastoplasts into his face, and an occasion on which she had damaged a neighbour’s letterbox.
The appellant claimed that there had been other incidents of a like kind although he was unable when challenged to be more specific.
In addition to the events summarised above, the appellant gave evidence of repeated difficulties in obtaining access to his son. He spoke of having repeatedly to wait for the handover of AF to him, and of conduct of the complainant which frustrated the handovers or made them difficult.
The Circumstances of the Offence
On 23 May 2010 the appellant went to the complainant’s house at 9 o’clock in order to take access to AF. This was pursuant to the regime ordered by the Federal Magistrates Court. The handover was to take place at 9.00 am. The appellant did not enter the complainant’s property but waited outside in his car until 9.20 am. He then telephoned the complainant to enquire about the handover. Instead of discussing the arrangements with him, the complainant gave the phone to AF. A further 20 minutes elapsed before the complainant and AF emerged from the house.
AF moved towards the appellant’s car but was seemingly in two minds. He dropped the ice block which he was holding and became upset. The appellant suggested to the complainant that she get a replacement ice block. He then picked up AF and moved to put him in the child’s seat on the rear passenger side of his car. This was difficult as AF was now distressed, crying and uncooperative. While the appellant was doing this, the complainant activated the video camera on her mobile phone, picked up the ice block, dusted it off and then approached the car. AF was crying and making the appellant’s placement of him in the child’s seat difficult. The appellant went to drive off, but before he could do so, the complainant opened the driver’s side rear door and reached in to hand the ice block to AF. It was then that the appellant gave her the shove which caused the complainant to fall to the ground. While she was on the ground, the appellant entered his car and drove away.
The video taken by the complainant on her mobile phone was tendered at the trial. The video itself is of poor quality and of little assistance. However, the audio record does confirm that the appellant said, at least three times, before the complainant was shoved, “please just get away from my car”.
The appellant gave evidence that his car was brand new, having been acquired by him only two months previously. He had the pride of new ownership. In addition, the appellant said that he had items of personal property on the back seat next to the driver’s side rear door, including his wallet and articles of identification associated with his work. The Magistrate made no findings about this evidence.
The appellant was questioned in both his evidence-in-chief and in the cross‑examination as to his thinking at the time when the complainant reached into his car. The following passage occurred in cross-examination:
"Q“You’ve said that you were concerned that she might interfere with the car as she lent into it. What was it that you thought she may have done?
AIt’s more a matter of what she’s capable of doing. It’s more a matter of the various things she could do. She could damage things; she could steal something from me; she could just, you know damage a certain item and then she could take money out of my wallet; she could take my identification as well as taking [AF] away, getting him out of the car seat. I had a brand-new car. It was two months old. I’ve never had a brand-new car before. I don’t want her next to my brand-new car, not to mention the fact that it was just – it was holding me up in a pretty big way. Of course, I mean she does unpredictable things.
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.

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.
The Magistrate did refer to much, although not all, of the evidence concerning the complainant’s prior behaviour which I summarised earlier. This occurred in the course of the Magistrate’s overall summary of the evidence. That summary was in narrative form, following the sequence of each of the examinations-in-chief and cross-examinations.
However, the Magistrate did not make detailed findings regarding the conduct. Nor did the Magistrate identify the forensic uses to which this evidence could be put or refer to any of the authorities, such as Hajistassi, in which the forensic uses of a complainant’s previous history of violent or unpredictable conduct have been discussed. I do not wish to be understood as indicating that it is always necessary for a magistrate in circumstances such as the present to refer expressly to such authorities. I mean only that in the circumstance that the previous conduct of the complainant is not separately identified, and made the subject of discrete findings, and its potential uses not discussed, the absence of reference to the relevant authorities tends to suggest that the significance of the evidence may have been overlooked or underestimated. That is my impression in the present case.
In forming that view, I am not overlooking that the Magistrate concluded [52] of his reasons with a reference to “the background described earlier”. That suggests that the Magistrate did not overlook entirely the previous history between the complainant and the appellant. However, I am not willing to conclude that this one sentence reference reflects a detailed consideration by the Magistrate of the forensic significance of the evidence concerning the appellant’s and complainant’s previous history.
In the case of parents acting sensibly and civilly towards one another at the time of the handover of a child for access purposes, it would be difficult to construe the action of a mother in opening a car door and reaching into the car in order to hand an ice block to a child as amounting to an unlawful interference with the car within the meaning of s 15A(1)(a)(i) of the CLCA. One would think instead that such an action would be implicitly authorised or, alternatively, that it was de minimus.
In the present case, however, the previous relationship between the parties, and the complainant’s conduct in particular, meant that the complainant’s possibly innocent act was capable of a quite different complexion. To my mind, that history makes it quite understandable that the appellant may have been concerned that the complainant may engage in untoward conduct. That was especially so bearing in mind that he had left items of personal property, including his wallet, on the back seat of the car. The complainant ignored the appellant’s requests, politely but firmly expressed, to keep away from the car. She could easily have done so by handing the ice block to the appellant to give to AF. Her persistence in the face of the appellant’s requests could easily have given rise to concerns about her real intentions.
The complainant had already frustrated to some extent the appellant’s taking of access that morning by delaying the handover for some 40 minutes beyond the time appointed by the Federal Magistrates Court. The prospect that she may have wished to cause difficulties for the appellant still further by removing his property, or throwing some out of the car, as she had previously when she removed the keys, could not be entirely discounted.
It is true, as the Magistrate found, that nothing had occurred, or had been said, on 23 May 2010 itself to indicate that the complainant was about to, or intended to, assault or attack the appellant or to damage or interfere with his property. The fact that the complainant was using her mobile phone to video tape the events is also pertinent in this respect because it may be thought unlikely that the complainant would wish to film her own unlawful conduct. However, the complainant’s history meant that her conduct on the morning of 23 May 2010 could not be viewed in isolation.
The prosecutor at trial put alternative explanations for the appellant’s conduct. These were that his shoving of the complainant was no more than an expression of his frustration towards the complainant in the context of their rancorous relationship, that is, the frustration caused by the complainant’s delay in giving him access to AF. Alternatively, it could be seen as the appellant’s attempt to remove any impediment to his leaving with his son. It seems that the Magistrate considered that the latter was the true explanation for the appellant’s conduct.
However, the words used by the appellant, as recorded by the complainant on her mobile phone, seem to be important in this respect. The complainant said three times “please just get away from my car”. Those words seem to imply a concern by the appellant about the car and, possibly, its contents. Further, the Magistrate’s conclusion in this respect is, in my respectful opinion, affected by his failure to give full effect to the evidence concerning the complainant’s previous conduct.
One is of course reluctant to interfere with a finding of fact made by a magistrate who saw and heard the witnesses. However, despite this, I am satisfied that the Magistrate did overlook, or underestimate, the significance of the complainant’s history. I consider that when regard is had to that history, the Magistrate should have found, at the least, that the prosecution had not excluded that it was reasonably possible that the appellant had genuinely believed his conduct to be necessary and reasonable to protect his property (his car and its contents) from unlawful interference.
In these circumstances, I consider that the conviction should not be allowed to stand. There is a question of what orders should now be made. On one view, it could be said that the matter should be remitted to the Magistrate’s Court for retrial.
The circumstances of this case are unusual in a number of respects. The appellant’s conduct comprised a shove, pushing the complainant away from the car. As a result of the shove the complainant tripped and fell to the ground. In relative terms, the conduct, although regrettable, was of a minor kind. In my opinion, once it be accepted that the prosecutor had not proved beyond reasonable doubt that the appellant was acting to protect his property, his conduct could not be characterised as not reasonably proportionate to the threat which he believed to exist. It was conduct which kept the complainant away from the car but did not go beyond that. It is possible that the appellant could have engaged in some forms of lesser conduct but in the circumstances, I consider it likely that would have lead to some continuing confrontation between the complainant and the appellant.
In these circumstances, I consider it appropriate for a verdict of acquittal to be entered.
Conclusion
For the reasons given above, I allow the appeal and set aside the appellant’s conviction.