Ormerod v Court - [2012] WADC 33

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ORMEROD -v- COURT [2012] WADC 33

CORAM: SWEENEY DCJ

HEARD: 19 OCTOBER 2011

DELIVERED : 7 MARCH 2012

FILE NO/S: APP 44 of 2010

BETWEEN: WAYNE ORMEROD
Appellant
AND
ALFRED COURT
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE JONES
File No  :FR 1138 of 2007

Catchwords:

Appeal - Battery - Assault - Self defence - Need to prove intention to cause apprehension of violence - Inferences - Mistake - No miscarriage of justice

Legislation:

Criminal Code s 24, s 222, s 248

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr C P Dunnell
Respondent: Mr G W Massey

Solicitors:

Appellant: Talbot Olivier
Respondent: Holborn Lenhoff Massey

Case(s) referred to in judgment(s):

Boughey v R (1986) 161 CLR 10; (1986) 65 ALR 609
Hall v Fonceca [1983] WAR 309
Lean v The Queen [1988] 1 WAR 349
R v Phillips [1971] ALR 740; (1971) 45 ALJR 467

SWEENEY DCJ: On 11 January 2006 an incident occurred in the Waroona Hotel which culminated in the respondent pushing the appellant to the face, causing him injury. No criminal charges were laid.
On 22 August 2007 the appellant filed a general procedure claim in the Magistrates Court seeking damages for 'injuries sustained as a result of the Defendant wrongfully assaulting and beating the Claimant by punching him on the mouth with his fists on 11 January 2006'. The matter was defended. The trial of the action took place on 28 October 2009 and 26 May 2010 before his Honour Mr Jones. His Honour delivered his decision extemporaneously, dismissing the claim. It is against that decision that Mr Ormerod appeals.
This court must decide an appeal from the Magistrates Court on the basis of the material and evidence that were before that court. Error must be shown in the court below.
There are three grounds of appeal. The first complains that the learned magistrate erred in fact and law in finding that the respondent acted in self‑defence 'in that the Learned Magistrate did not consider or give adequate weight to the question of whether some act of the Appellant caused a reasonable apprehension in the Respondent of the application of force on the Respondent by the Appellant'.
The second ground complains that the learned magistrate failed to give due consideration to the possibility of retreat by the respondent when this finding was open on the evidence.
The third ground complains that the learned magistrate erred in finding that the respondent had acted in self‑defence, when the force used by the respondent against the appellant was unreasonable.
For the reasons which appear below, the appeal is dismissed.

The evidence

The trial took place almost four years after the incident. The appellant testified that he is a single parent raising three children who were 13, 14 and 15 in October 2009 (so they must have been about 10, 11 and 12 at the time). His children came home complaining that they had been threatened, as a result of which he went to the Waroona Hotel, asked his children to stay outside and approached the bar and spoke to the bar attendant. He asked the bar attendant if he knew who owned the car parked outside that the appellant's children were pointing at.
He said that, as he was speaking to the barman, he heard someone calling out to him and turned around to hear the respondent say something to the effect of 'I was the one that said that, mate'. A conversation then occurred, which the appellant said was quite short, in which he told the respondent he should not be threatening his children and the respondent raised his arms and moved them and stated words to the effect of 'What would you rather me do, ring the police?'.
The appellant said he felt that he really did not want the police telephoned about his children but, given the circumstances, if they had been breaking the law then it might have been better if the police were telephoned. He testified that he did not get to say all of that before he was punched in the mouth under his nose. He said:
It was that quick I didn't actually see it. I just felt it. It made me move backwards as well. I sort of had to regain my footing as I moved backwards, then lifted my arms in front of me because by then most of the people in the bar were looking towards us. I raised my arms in a defence type action and said that I hadn't hit him.
He said he then exited the bar, approached the vehicle that his children had been complaining about and had a look inside the vehicle, noticed that two or three gentlemen were then coming outside, and then went to the phone box and attempted to ring the police. He said he was not sure whether he got through. At that point he said:
I had a – I couldn't talk properly and I had blood dripping from the top of my mouth. I could feel it swelling right and hurting.
He could not recall when he did in fact get in touch with the police but said he made an appointment to complain about being assaulted. He believed his complaint was not taken seriously and did not think anyone did anything about it. He made a claim for criminal injuries compensation and was awarded $5,000 for injuries and $4,750 for dental treatment. He said he was not able to access the money for dental treatment, because he was advised his gums needed treating for gum disease before any dental work could be done and he needed more funds in order to do that.
The appellant said, after the assault, he consulted his local general practitioner, Dr Ong. He was shown Dr Ong's medical report and agreed that it detailed the injuries he had suffered (as split left upper lip and gum, sore nose and a complaint of headache) but said 'there was more injuries but you couldn't see them because they were inside my mouth'.
The appellant also consulted Dr Odges of Rockingham Dental Hospital and was shown a report of Dr Odges dated 21 March 2007. That report indicated that to remove the remnants of a root stump of a missing crown of tooth 21 would cost approximately $140 ‑ $180 and to then implant a single tooth would cost approximately $4,500. That treatment had not been done given the state of his gums.
Under cross‑examination, the appellant said the reason why he went to the hotel that day was because his children had complained that the owner of the ute had been abusing them and he wanted to get the details of the owner but 'hadn't gone in to try and stir any trouble'. He denied that he had gone there to sort out what had happened or to yell at that person.
He was reminded that in his statement to police he had told them 'I went to the pub to try and sort out what had happened' but denied that he had gone to the pub for a fight. He said getting the registration number of the car 'didn't necessarily get the person that was abusing and threatening my children'.
He agreed that he had asked the bar attendant words to the effect of 'Who went crook at my kids?' and said the bar manager had claimed that one of his children was in one of the cars. He agreed that the respondent had then said to him 'I said that, mate'.
The appellant denied having walked over to the respondent but said he could not recall exactly. He denied that when he entered the bar he had entered in an aggressive manner, yelling and shouting. He said he definitely did not approach the respondent in a very aggressive manner and denied that he had got very close to the respondent and in his face, yelling at him.
He said he did not see the punch to his face, but felt there was definitely some force in it. When it was suggested to him that he had not been punched at all but rather pushed, with an open hand, the appellant's evidence was:
It impacted at one particular section under my nose. I mean, an open hand would have clearly gone a lot wider spread and would definitely not have snapped my tooth off below the gum line.
He said the punch did not cause him to fall, but made him step back. He denied that he had then taken a step forward and attempted to kick at the respondent and he also denied that he was escorted from the hotel by the bar attendant.
When tackled on why, after being hit, he had raised his hands and said 'I didn't hit him' he said that was because everyone was looking at him. He denied saying that because he had approached the respondent in order to hit him and denied approaching the respondent at all. He said he was in a state of shock after being hit and could not believe it. He denied exaggerating the incident. He also denied yelling at the respondent, after he had left the hotel, words to the effect of 'You're dead, I'll get you later', but agreed that he had been pretty angry and upset when he left the hotel.
He said he would have been bleeding when he left the hotel but, when asked whether he knew that or not, replied 'Well, no, I couldn't – logically you would be bleeding'.
He was unable to say when he first realised that his tooth was damaged and said it was probably when the swelling went down. He said he could not recall whether he knew his tooth was damaged later on that day and said he would not necessarily realise if his tooth had been broken. He was reminded that in his statement to police he stated:
As a result of the punch my top lip was swollen, and it split the gums on the inside of my mouth.
In cross‑examination the appellant was asked whether he had shown the police officer the injuries he had suffered and he replied 'At the time I couldn't open my mouth'. He said it was hard to talk and his jaw was extremely painful but agreed it was not broken. He said, in effect, that it was impossible for the officer not to have seen his split lip.
He had to agree there was no mention in his statement of any damage to his tooth, but said 'There was definitely damage done. My tooth was snapped off below the gum line'. He said he was 100% sure that it happened during the incident, but said he had not checked his teeth before he made his statement to the police. He said he was not able to look inside his mouth at that stage and probably knew that his gum was split because he could feel it with his tongue. He denied that he was lying about his tooth being broken during the incident and said 'Well, it wasn't broken, it was snapped off below the gum line'.
When asked whether his tooth had already been damaged prior to the incident the appellant agreed that the end of that tooth was missing and that he had never had a crown put on that tooth. He said the end of the tooth was missing through decay and he had not sought treatment for that. He also agreed that he had had gum disease for some time.
As to the report from Dr Ong, which likewise makes no mention of a damaged tooth, the appellant said he could not say whether Dr Ong examined inside his mouth or not and he probably only examined the exterior of his face. He said the swelling was so great that he just would not have known at the time that his tooth had been broken.
Finally, the appellant said it was absurd to suggest that he was exaggerating his injuries and outrageous to suggest that he was the aggressor. He said he did not approach the respondent and the respondent had approached him.
Dr Ong, medical practitioner, confirmed that he had seen the appellant on 12 January 2006 (not 2005 as was written in his report). He confirmed that the injuries sustained 'were a split lip, upper lip and gum, sore nose and he complained of a headache'.
In cross‑examination he agreed that he had conducted an examination of the appellant and was able to see the split lip, upper lip and gum and a split to the gum on the upper left side. He agreed that he had looked inside the appellant's mouth to verify that split.
In re‑examination he said the lip might have been split on the outside or the inside, but that the gum would be inside the mouth. It was suggested to him that, if a tooth was missing, his notes would not indicate that, to which the doctor replied 'That would be the dentist's job, I think'. He was asked 'What I'm getting at is it's possible that a tooth was missing and you did not note it?' and the doctor conceded, somewhat surprisingly, that could be true. What was not put to him in re‑examination, however, is whether or not his notes would record a complaint from his patient of a tooth having been split below the gum line during the incident.
Dr Odges, dentist, said that he first saw the appellant on 21 March 2007 when he came in specifically because he had been requested to by his lawyer to get a quote to have a missing tooth repaired. The missing tooth was the upper central incisor. The doctor explained that it would be unethical to go ahead with the treatment at that time, because the prognosis for the implant would be compromised substantially by existing gum disease and so it was advisable to have that treated first.
The history Dr Odges took from the patient was that the tooth was snapped off just below the level of the gums in the incident. He said the patient only came to see him a month after the incident, and said that he had no way of telling the age of the trauma and it could have been three or four weeks old, but could equally have been years old.
Turning now to the respondent's account, he testified, by way of background, that he had been in the bar that afternoon when a bloke had come in and said there were kids over by the car trying to get into it and open the doors up. He said his car was usually unlocked. He said he looked out and went across and saw three children at the cars trying to open doors up. He said he went across and told them to get away from the cars. He said the oldest girl was giving him a mouthful. He said he locked his car and then returned to the hotel.
Moving to the incident itself, the respondent testified that, about 20 minutes later, he was sitting on a stool just down the bar a bit, when the appellant entered the bar, approached the bar manager 'and wanted to know who was going crook at his kids. I overhead him and told him it was me'. He said he was still sitting down when he first spoke to the appellant.
He said 'When I said it was me he come down towards me. I stood up as he got close to me'. He said the appellant 'wanted to know why I was going crook at his kids so I told him they were trying to get into my car'. He said the appellant's voice was 'very loud' and 'pretty aggressive'.
He said the appellant asked him 'Why did you go crook?' and he had replied 'What did you want me to do, ring the police?'. The respondent demonstrated how close the appellant was by holding up his hands, estimated by counsel to be a distance of 20 to 30 cm roughly. He said that was the distance from the appellant's face to his face and he felt 'a bit intimidated' and 'worried he was going to head-butt me or hit me, so I just pushed him away from me'.
The respondent said:
He got right in my face and I was a bit worried at the time he was going to head‑butt me or hit me, so I slashed [sic: lashed] out and pushed him away.
He said he pushed the appellant with his right open hand in the face, because 'I just wanted him out of the – I was worried he was going to head‑butt me or hit me. I just wanted him away from me'.
He agreed that, as a result of that push, the appellant went backwards, 'not that far; just far enough', then regained his balance and tried to kick him in the legs. He said the appellant tried to kick him a couple of times and the kicks 'just grazed my legs, it was nothing'. He said 'He come back towards me, that's when Steve come from behind the bar', a reference to the bar manager, and he said the bar manager then escorted the appellant out the door. He said as the appellant was leaving he said 'You're dead. I'll get you later'. The respondent said he did not observe any injury, or any bleeding, to the appellant at that time.
The respondent said he was not charged by the police and was unaware that the appellant had made any claim for criminal injuries compensation. He said he had not been invited to comment on that claim, or make any submissions.
In cross‑examination the respondent said he had arrived in the hotel late afternoon, but could not recall whether that had been a work day or not. He said he was quite sure that he had arrived at the hotel only a short time prior to the incident and denied that he had been there all day. He said he had been at home with a friend before going down in the afternoon to have a couple of bets.
He agreed the appellant had arrived at the hotel about half an hour after he had spoken to the children and agreed the appellant was furious. He confirmed that the push was to the appellant's face.
It was put to him that he had actually struck the appellant in the face but he denied that and said 'I just pushed out, pushed him away from me'. He agreed his hand was upright when he did that.
It was put to him that his hand had covered the appellant's entire face and he responded 'Well, I don't know it was his entire face. I just pushed him in the face …'. When it was suggested to him that the back of his hand could have hit the appellant in the teeth area he said 'Well, I don't know about that' and then disagreed with the proposition. He agreed the push did cause the appellant to stumble backwards and take a couple of steps back and said the appellant then attempted to kick him upon regaining his balance.
There were other eye witnesses called. Martin Wrobel testified that he was just arriving at the hotel when there was an incident outside involving children. It is unnecessary to detail his evidence on that point. He said as that was happening he entered the bar, sat down near the door and had a beer.
He said it was not long after that that the appellant arrived and had a few words with the respondent. Mr Wrobel said he did not really hear what was said, it was just a bit of swear words about his kids hanging around the car and then he saw a bit of pushing and shoving.
When asked to clarify that, he said he saw the respondent push the appellant out of the way and tell him to get lost. He said the respondent pushed the appellant out of the way by pushing his hand on the centre of the appellant's chest with his arm outstretched and his palm outwards and his fingers pointing upwards. He saw no further contact after that. He said the appellant then walked back outside the door, then turned around and told the respondent 'I'll get you'.
When it was suggested to him in cross-examination that the appellant was aggressive that day, Mr Wrobel replied 'I would say he was very aggressive, very angry'. He agreed the appellant was shouting and that he was standing pretty close to the respondent, about a metre away from him. He said that the respondent was pretty calm throughout the incident, only pushed the appellant with an open palm which was not delivered with very much force and, by contrast, said the appellant 'was aggressive, even when he walked out of the door'. He agreed that the appellant had also attempted to kick the respondent. He said he had not seen any punches thrown. He did not recall the appellant having to be escorted out of the door. He said he saw no blood on the appellant as he left the hotel.
Mr Wrobel also testified that the appellant had a chipped tooth prior to the incident. He said he had not been present when that occurred, but he had previously seen that the appellant's front right tooth was chipped.
In re‑examination, Mr Wrobel said that the appellant had told him that his previously chipped tooth had occurred when 'he had a barney with one of his mates'. Mr Wrobel confirmed that he was not there at the time, but said it had occurred at a party around the appellant's place. Mr Wrobel said he also used to know the bloke who belted him. He could not recall when that incident was said to have occurred and thought it was probably six or 12 months prior to the incident at the Waroona Hotel.

Steven Collins was the bar manager of the Waroona Hotel. He said he was working in the hotel when children were seen playing around the cars and he said the respondent went outside and made some gesture like 'get away'. Mr Collins gave more details, but it is not necessary to repeat them.
He said about half an hour to 45 minutes later the appellant entered the bar 'quite loud, you know, and came straight up to the bar and he goes "Who threatened my kids?" or "Did you threaten my kids?", or something along those lines'. Mr Collins seemed to be suggesting it was said directly to him because he was the only person behind the bar and he told the appellant he did not know what he was talking about because he had basically forgotten about the earlier incident. He described the appellant as 'quite aggressive the way he came up to the bar and he was quite loud in the way he actually spoke'.
He said at that point the respondent stood up about 10 m away and admitted that it was him who had said something to the kids. Mr Collins said the appellant then went up to him 'and stood really close and started, you know – "Don't threaten my kids" or whatever, something along those lines'. He said that, when the appellant said that, he was 'very intimidating' and the tone of his voice was 'aggressive' and 'loud, very vocal'. He described the appellant as 'right in his face. Might say a couple of inches away, you know – four, five, six inches, something like that'. He said the appellant was telling the respondent 'You call the cops if they are a problem' and he said he thinks the respondent replied 'Well, maybe next time I will. I'll call the cops next time' and pointed out that the children should not be playing around the cars.
Mr Collins said he was still working the bar at that point but 'I mean I kept an eye on it because there was raised voices and, you know. There's a point where I've seen a push'. He said the respondent pushed the appellant with an open hand to the upper area of the chest as if to say 'you know, "Get out of my face"'. He said 'It wasn't anything overly oppressive, it was just, you know "Give me space"'. He said the push did cause the appellant to move backwards, 'a couple of feet maybe', which prompted Mr Collins to start moving around the bar to approach them, because he did not want it to escalate into a situation where people started throwing punches. He said he approached them to move between them and, as he did that, the appellant was trying to do karate kicks towards the respondent and the respondent was just standing back at the bar.
Mr Collins said he asked 'What's going on here, mate?' and said to the appellant 'You are out of here'. He said he did that because 'I would rather remove the aggressor of the situation and be able to talk to the other side separately, and that's just generally the way we do it'. He said he put his arms up and started shepherding the appellant out of the door and said, as he was doing that, the appellant's demeanour was aggressive and he was saying 'I'll get you' to the respondent. Mr Collins said at that point he did not observe any injuries to the appellant and did not see any bleeding.
In cross‑examination Mr Collins said the respondent had not been at the hotel that day for very long prior to the incident itself. He said there were up to a dozen people in the TAB, the bar and out the front of the hotel. He agreed that, while the interchange was occurring between the appellant and the respondent, he was continuing to serve people and was 'keeping one eye on what's happening'.
It was put to him in cross‑examination that the respondent himself had said that he pushed the appellant to the face. Mr Collins explained that where he had been positioned over at the bar placed the appellant 'basically almost with his back to me' and he said that he was seeing them diagonally. He appeared to be accepting that the push may have been to the face. I understand him to be saying that the angle of his vision was such that he had an impression the push was to the upper chest, but accepted that it could have been to the face.
Mr Stephen Brown was also present at the hotel that afternoon. He said he had been at the hotel for 15 to 30 minutes or so prior to the incident occurring. He described the incident with the children. Again, it is unnecessary to detail his evidence on that point.
Mr Brown said that, about half an hour later, he was in the TAB just near the bar when he saw the appellant enter the bar asking who told his kids off, or something in that manner. He said the volume of his voice was alright, but then it got a bit louder as he went on. Upon hearing that, Mr Brown came to the door of the TAB, which placed him at the corner of the bar. He said he then heard the respondent say 'It's me'.
Mr Brown said he moved closer to the bar itself and was about 4 feet away, behind the respondent. He said at that point the appellant and the respondent were 3 or 4 feet apart. He agreed that the appellant had got closer to the respondent and 'as it got a bit heated, (the appellant) went off a bit, got a bit frustrated and – yeah'. He said he did not hear all of what was said but it was all about the children and the appellant was saying 'You should have called the police' or something and the respondent said 'I just wanted them away from the car'. He said the appellant's voice was getting louder and he was upset.
Mr Brown said the appellant moved closer up the bar and 'they ended up only about six inches apart'. He said the respondent might also have moved forward a foot, but he was not sure about that. When asked what happened next, Mr Brown said:
Then (the appellant), like, pushed him out of his face because they were pretty close. (The respondent) shoved him and he went backwards – yeah, he went back about three foot. (The appellant) just started yelling like 'you're dead'. That was when Steve come out and grabbed him – the bar manager.
Mr Brown described the push as a one‑handed push with an open hand. He agreed that at that point he was standing behind the respondent and the appellant was on the other side of the respondent. He said he thought the push was towards the top of the chest and shoulder. He said it caused the appellant to go backwards a couple of feet, or 3 feet, and he then lashed out with his feet as he went backwards, like a kick. He thought that happened a couple of times, although he was not sure, but did not think the kicks connected.
He described the appellant's voice as being pretty loud when he said to the respondent 'You're dead' or 'You're a dead man' and said the manager then grabbed him, told him 'You're out', told him to quieten down and escorted him out of the door. He said he did not observe any injuries, or blood, on the appellant at that time.
In cross‑examination Mr Brown said he was drinking with the respondent and his mate at the time of the incident. When he was informed that the respondent himself accepted that he had pushed the appellant to the face, Mr Brown accepted that it could have been to the face, but said he had thought it was to the upper chest. He said 'It happened that quick'. He said the respondent 'just pushed him backwards because he was coming right up to his face'. That is the last of the eyewitness accounts.
Constable Travis Jenkinson said he was stationed at Waroona Police Station when he received a complaint from the appellant on 11 January 2006. When asked what injuries he observed on the appellant he replied:
I'm not sure if it was the first day or the day after (the appellant) had been to the doctor but he showed me a bruising and a split lip … I think the split was on the inside of his lip because he had to pull his lip out to show me the bruise.
He said that he did not see any blood at that time and 'mostly I could see bruising'. When asked 'Was he making a complaint about a tooth being knocked out?' Constable Jenkinson replied 'No, not at that stage', but said the appellant did complain about his tooth 'after I think about a week of speaking to people a decision was made to not proceed with any charges'. The officer confirmed that he meant that it was about a week after the incident that the appellant first complained about his tooth. When asked to consult his running sheet, he found a note that the first time he had seen the appellant was 12 January 2006 and that the appellant first complained to him about his tooth on 29 January 2006, which is 18 days post‑incident.
Constable Jenkinson said he thought, from memory, that the appellant made the first complaint about the incident over the telephone and he advised the appellant that the police would need a statement from him and that he would also need to see his doctor, 'so I made arrangements for him to see a doctor first and I would take a statement the following day'.
Constable Jenkinson was asked some irrelevant questions about why no charges had been laid.

His Honour's reasons

His Honour summarised the evidence of all of the witnesses in some detail. Following that he gave the following reasons, which I have set out in full given the nature of the grounds of appeal:
In relation to this particular matter (the appellant) has the onus or the job of satisfying this court on the balance of probabilities as to what he said, that is, that he was assaulted by (the respondent). There needs to be something briefly said about assaults and batteries in relation to this particular matter. It is common and it is well settled law that an assault is any direct threat by a person that places another person in reasonable apprehension of an imminent contact by that person. Battery, however, is slightly different. That is a direct act of a person that has the effect of causing contact with the body of another person without that other person's consent.
Now, in relation to this particular matter I can summarise it briefly, and there doesn't seem to be any dispute, that there was contact between (the respondent) and (the appellant), either that it was a punch or that it was a push. (The appellant) said he didn't actually know whether it was a punch or a push being it happened so quickly, and he said it came – he said, 'I was punched', but he said, 'It came out so quickly' and it was just under the front section, just under his nose.
It does not seem to be in dispute and I have to say that the evidence by Mr Rowbell (sic: Wrobel), Mr Collins, Mr Brown and (the respondent) himself, all that evidence suggests and I have to find and I do find as a matter of fact that the contact between (the respondent) and (the appellant) was a push by an open hand and not as a punch, a closed fist. The evidence is quite clear on that, in my view, even the evidence of (the appellant), that that was the case. (The respondent) said he pushed him in the face and that may well have been and so I accept that.
So it's not in dispute, really, that there was a battery by (the respondent) upon (the appellant). That does not seem to be in dispute. What is in dispute is, firstly, the damage caused by that push to (the appellant). The defendant says that because – as a result – because of what had been said, that is, that there was no blood appearing between – as he walked out nobody saw blood; (the respondent), Mr Collins, Mr Brown and Mr (Wrobel) did not see any blood upon or any injury upon (the appellant), that the damage was consistent with pushing to the face with a split lip inside the lip and maybe bruising inside. I do not accept (the appellant's) evidence that his injuries were such that he couldn't open his mouth and show it to the doctor, he couldn't do that. In fact, he showed his lip to the policeman, as his evidence suggested today. So I am satisfied that there was that split lip and cut.
In relation to the tooth, I am not satisfied on the balance of probabilities, at least, that the injury to the tooth was caused by (the respondent). There was no complaint – and I firstly indicate there was no complaint to the police that there was injury to his tooth. There was no complaint to the doctor that there was injury to his tooth, and in fact there is evidence to suggest that the tooth and (sic: had) been chipped and I accept that there was a visual observation by Mr (Wrobel) that (the appellant's) front tooth had been chipped quite some time ago. Regardless of how it got there, there is quite – evidence that I can accept.
I also note that there was no complaint about the tooth until he went to the doctor in 2007, 21 March 2007, and it wasn't until some time later that he'd even mentioned about the tooth in any event. So as far as the tooth is concerned I find on the balance of probabilities that there was no – the pushing of (the appellant) by (the respondent) did not do any damage to that tooth, however, as I've made a finding earlier, based on the evidence given by those people I've mentioned, it is quite clear that (the respondent) did push (the appellant). I do find on his evidence, at least, that he did push to the extent to the face and therefore he could have and would have on the balance of probabilities caused a minor injury as suggested, a split lip that he showed the police, in the inside of his mouth, given the fact that he may have had a chipped tooth, or he did have a chipped tooth prior to that.
Now, establishing that, as I've indicated before, the onus is upon the claimant to prove on the balance of probabilities that (the respondent's) damage was wilful and that it was acting – it was in fact a tortious action or act. (The respondent) has the onus therefore to then satisfy this court on the balance of probabilities that he was acting in self defence. A person who is threatened or attacked by another person and who reasonably believes that he or she is in danger of death or serious injury can act in order to protect his or her right of personal safety. That act that is done in self defence, however, must be reasonably necessary, and I ask you to see the case of Fontin v Katapodis (1962) 108 CLR 177 and more particularly at page 181. At page 182 it was said that that must be not – and the force used must not be excessive.
I look at the evidence of (the appellant). He says that he was standing, talking to the barman and in fact (the respondent) came over to him. He was the one that was aggressive and said, 'It was me'. They were talking in conversation about not having a go at the children but if there were any problems about the children (the respondent) is to – should have rung the police and he didn't get it all out, he said, but he said before he got the chance to finish that conversation (the respondent) punched him as he suggested.
I look at the other evidence, all the other evidence, given by his witness Mr (Wrobel), other witnesses, Mr Brown, Mr Collins and, yes, himself, that suggests and as I find as a matter of fact, (the respondent) did not move. He simply said, 'Yes, it was me' or words to that effect when it was said quite loudly by (the appellant), 'Who is having a go at my kids?' and as a result of that, and I find also, that on the evidence given by all the other witnesses that (the appellant) was loud, was aggressive and was frustrated – one other word used was frustrated and also heated.
So I accept the evidence of those several witnesses, all of those witnesses, including Mr (Wrobel) in (the appellant's) case, that he was in fact quite aggressive, loud and was – seemed to be intimidating, was another word used. I also find that (the respondent) did not move from his position. I find that it was (the appellant) that approached and walked up to (the respondent). I accept that the evidence by the witnesses Brown, Collins, (Wrobel), all indicate that (the appellant) went within varying – six inches from some people, 20 centimetres from other people, but was in a short, close distance, and as far as that's concerned, I accept that (the appellant) did in fact come up extremely close to (the respondent) and was quite loud and yelling and aggressive.
I accept even on the balance of probability, but I accept to a higher degree the evidence given by (the respondent) that he was concerned, that he said – and the words were, 'He got right I my face'. He said, 'I was worried he was going to head‑butt me so I pushed him away'. He said, 'His face was about 20 centimetres away'. On two occasions he said that he was worried that he was going to head‑butted. He was also worried, he said he was intimidated.
On that basis, and I return to the case of Fontin v Katapodis, if a person reasonably believes that he or she is in danger of death or serious injury – and in this case the serious injury, my understanding of (the respondent's) evidence, that he was concerned that he would be head‑butted, that on my understanding would result in serious injury. In my view therefore (the respondent) was reasonable in pushing (the appellant) away and he did so – and I find as a finding of fact that (the respondent) did in fact push (the appellant) away in self defence. Therefore, I find that the plaintiff, or in this case the complainant, has not made out his case on the balance of probabilities and I find and I give judgment in favour of the defendant.

Ground 1

Ground 1 complains in essence that his Honour did not turn his mind to the question of whether some act of the appellant caused a reasonable apprehension in the respondent of the application of force to the respondent by the appellant.
That ground was clarified in submissions. What the appellant argues is that, it being common ground that the onus lay upon the respondent to prove that he had acted in self‑defence, it was necessary for him to prove on the balance of probabilities that the appellant had intended either to use force, or to create an apprehension in the respondent that he was about to use force.
It was common ground at the trial that, in order to succeed, the appellant had to prove that he had been the victim of a battery, a battery being the reckless or intentional application of force without consent, lawful excuse, or justification: see R v Phillips [1971] ALR 740; (1971) 45 ALJR 467; Boughey v R (1986) 161 CLR 10; (1986) 65 ALR 609. It was also common ground that the definition of battery in tort is very similar to the definition of an assault within the provisions of the Criminal Code. Section 222 of the Code provides:
222.Term used: assault
A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.
The term applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.
Although the weight of the evidence established that the appellant had, after being pushed by the respondent, kicked out at him, there was no suggestion that he had applied force to the respondent prior to being forcibly pushed.
It was common ground before me that the respondent would not be liable in damages for battery if his action was justified on the ground that he was acting in self‑defence. It was accepted that the principles of self‑defence which apply to a civil action for battery are those encapsulated in s 248 of the Criminal Code, there being no submission on the part of the appellant (and nor could there be) that, by speaking to the appellant's children earlier, the respondent had provoked an assault upon himself. The incident having occurred in early 2006, the law in force at that time applies.

Section 248 of the Criminal Code then provided:
248. Self‑defence against unprovoked assault
When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.
If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.
Before the respondent could rely upon self‑defence to escape liability for the battery upon the appellant, it was necessary for him to prove firstly that he had been unlawfully assaulted by the appellant.
Given that it was common ground that the appellant did not actually apply force to the respondent, it was necessary for the respondent to prove that the appellant had attempted or threatened to apply force to the respondent. In Hall v Fonceca [1983] WAR 309, Smith and Kennedy JJ stated (313):
Section 222 contains no express reference to any particular intention with which the assailant must act, although, clearly, so far as an 'attempt' is concerned, it would seem to be obvious enough that an intention on the part of the assailant to apply force is necessarily involved (cf s 4). Furthermore, there can be no assault in the case of an attempt or a threat under the definition unless there is an actual or apparent ability to effect the assailant's 'purpose'. It would not normally be realistic to speak in terms of 'purpose' in a context such as this without there being an intention on the part of the assailant, although, in the case of a threat, the purpose which the assailant must have, or appear to have, a present ability to affect poses some difficulty, unless it be treated as the purpose conveyed by the threat (cf: R v Dale [1969] QWN 30).
It is generally accepted that the section lays down the common law as understood at the time of enactment of the Code (see, for example, Brady v Schatzel [1911] St R Qd 206). At common law, the weight of opinion clearly favours the view that there must be, on the part of the assailant, an intention either to use force or to create an apprehension of the use of force on the part of the person being assaulted. That has not been of recent development. It is unnecessary to consider whether recklessness, where the assailant adverts to the consequence of his conduct, suffices for this purpose, although there is strong support for the view that it does. …
Although the authorities are surprisingly sparse in this area, we accept that an intention on the part of the assailant either to use force or to create apprehension in the victim is an element in an assault.
It was common ground that the passages quoted above represent the current state of the law. It was not necessary for the respondent to prove an attempt, and therefore an intention, on the part of the appellant to use force against him, but it was necessary for the respondent to prove an intention on the part of the appellant to create an apprehension in the respondent of the use of force against him.
His Honour's statement of the law did not capture this aspect. His Honour said:
There needs to be something briefly said about assaults and batteries in relation to this particular matter. It is common and it is well settled law that an assault is any direct threat by a person that places another person in reasonable apprehension of an imminent contact by that person.
That statement of the law implies that what must be proved was that, objectively, there were reasonable grounds for the respondent to apprehend imminent force against him. It does not, however, address the issue of the appellant's intent to create such an apprehension in the respondent.
His Honour made no specific finding to the effect that, at the time of his approach to the respondent, the appellant did have such an intention. In fact his Honour appeared, with respect, to have moved from that element immediately to the question of the respondent's state of mind.
His Honour summed up the defence of self‑defence thus:
A person who is threatened or attacked by another person and who reasonably believes that he or she is in danger of death or serious injury can act in order to protect his or her right of personal safety.
That summary of course relates to the second limb of s 248 Criminal Code and had no application to this case. Counsel confirmed before me that there was no suggestion that the breaking of the tooth did amount to grievous bodily harm (as opposed to a cosmetic injury). In any event, the damage to the tooth was not found by his Honour to have been caused during the incident. There was no need for the respondent to prove that he reasonably apprehended that he would suffer either death or grievous bodily harm.
It was the first limb of s 248 which applied to this case, justifying the use of 'such force to the assailant as is reasonably necessary to make a effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm'. His Honour made several findings of fact which led him to conclude that the respondent was concerned that he was going to be head‑butted and that he was worried and intimidated.
His Honour accepted the evidence of the respondent and accepted that he was concerned that he would be head‑butted and that his concern was that he would suffer a serious injury. His Honour therefore found the respondent was reasonable in pushing the applicant away. His Honour also found that the applicant was aggressive, loud and intimidating and 'did in fact come up extremely close to (the respondent) and was quite loud and yelling and aggressive'. It is clear then that his Honour was satisfied that the behaviour of the appellant did cause in the respondent a reasonable apprehension of impending violence.
What his Honour did not expressly find, however, was that the creation of that apprehension was intentional on the part of the appellant. It is not apparent from his Honour's reasons that his Honour turned his mind to that issue at all. If he did, his reasons fail to reveal the reasoning process employed.
It being essential that the respondent prove that intent on the part of the appellant, the apparent failure to address or make a finding on that issue does represent an error.
The question, however, is whether that error is such that it has occasioned a miscarriage of justice. Given that this court has express power (see s 43(4)(c) Magistrates Court (Civil Proceedings) Act2004) to strike out a ground of appeal which has a reasonable prospect of succeeding, if no miscarriage of justice would occur by striking it out, then it must equally have power to uphold a decision, even in the face of error, when there has been no miscarriage of justice.
It is readily apparent from his Honour's findings of fact and comments about the credibility of the various witnesses that, had his Honour turned his mind to the precise issue of whether or not the appellant intended to create an apprehension of impending violence, his Honour must necessarily have found that he did. Such a finding would involve the drawing of an inference based upon the proven facts.
His Honour found that the appellant approached the respondent in a manner that was loud, aggressive, frustrated and heated, that he was intimidating and came up extremely close to the respondent, while yelling at him, and that he got right in the face of the respondent such as to cause a reasonable apprehension on the part of the respondent that he was about to be head‑butted and incur serious injury.
In the light of all of those factual findings, it would have been extraordinary had his Honour not been prepared to infer, on the balance of probabilities, that it was the appellant's intention to cause an apprehension on the part of the respondent of impending violence. It might not necessarily follow that it was the appellant's intention to do actual violence to the respondent, but it must surely follow that he intended to cause the obvious result of his actions, namely apprehension in the respondent of impending violence.
Further, and in any event, even if his Honour had failed to be satisfied that the appellant did have such an intention, the findings of fact that his Honour made were sufficient to make out self‑defence because, if the respondent was under an honest and reasonable, but mistaken, belief that the appellant intended to create an apprehension of impending violence, then the respondent was no more responsible than he would have been had those facts been true. I see no reason why the doctrine of mistake, available to any defendant in a criminal case involving assault, should not be available to the respondent in a civil case concerning battery.
Mistake usually has little part to play in relation to self‑defence because, between the requirement that the defendant must be using force in order to make effectual defence, and the requirement that that force be such as is reasonably necessary, there is little additional ground for the principle of mistake to cover.
Before self‑defence can be relevant, however, a person must have been assaulted and there is scope, depending upon the facts of each case, for an honest and reasonable but mistaken belief in that state of things, namely whether or not an assault has occurred. For an assault to have occurred in these circumstances, where the assault amounts to an attempt or threat to apply force, as opposed to the actual application of force, there is room for a person to be mistaken about a factual matter, that is to say the state of mind of his assailant.
Although the cases will be limited in which mistake intersects with self‑defence, the potential application of the section was acknowledged in Lean v The Queen [1988] 1 WAR 349. Malcolm CJ stated (349):
There may well be cases where there is room for the operation of the defence of honest and reasonable but mistaken belief in a state of things under s 24 of the Criminal Code as distinct from the defence of self‑defence under s 248 or s 249 of the Code. In the present case the accused claimed that he acted in the belief that he had been slashed with a knife, that his throat had been cut and that he was going to die. That belief was mistaken. That was a belief in a state of things pursuant to s 24. Given that the belief was honest and reasonable, as well as mistaken the appellant would not have been criminally responsible for any greater extent then if the real state of things had been such as the appellant believed to exist: s 24 of the Code. In the context of ss 248 and 249 of the Code, it is not necessary to have resort to s 24 unless, as Barwick CJ said in Marwew v The Queen (1977) 138 CLR 630 at 637:
'… the reasonable grounds for the necessary belief included the accused's erroneous understanding of some fact which, had it been as the accused understood, would have supported the existence of reasonable grounds.'
Section 24 of the Code has no relevance to s 248 and 249 except to the extent that it may be in that way be relevant to the existence of reasonable grounds.
Brinsden J also commented upon the limited circumstances in which the principle of mistake would need to be resorted to for the purposes of self‑defence. His Honour likewise agreed that, in the first paragraph of s 248, 'there is no scope for the operation of s 24 except to the limited extent in consideration of reasonable grounds, for the necessary belief includes the accused's erroneous understanding of some fact which, had it been as the accused understood, would have supported the existence of reasonable grounds' (351).
Brinsden J also appeared to accept that mistake could have some application in the right set of facts, in suggesting that, amongst the things the jury ought to have been directed was that 'they should take into account that he may have laboured under an honest and reasonable but mistaken belief that he had been attacked by Uduste wielding a knife or some other form of a weapon' (351).
Seaman J referred to the submission from the Crown prosecutor 'that s 24 of the Criminal Code had nothing to do with the case at all, and that the concept of reasonability within ss 248 and 249 of the Code encompasses it, all the ingredients of honest and reasonable or mistaken belief being contained within the two sections', then referred to the passage quoted above from Barwick CJ in Marwew's case, before concluding (356):
In my opinion the latter passage demonstrates that s 24 does apply to the defence in this case under ss 248 and 249 for it was the appellant's case that he erroneously understood as the fact that he had been cut in the throat by a knife wielded by Uduste.
In this case, even if there existed a possibility that his Honour would not, had he turned his mind to the issue, have drawn an inference against the appellant that he intended the obvious results of his actions, that is to say that he intended to create apprehension of impending violence in the respondent, and even if it be the case that the respondent was mistaken in his belief that the appellant intended to head‑butt him, the findings of fact made by his Honour must necessarily have lead to a conclusion that the respondent was acting under an honest and reasonable but mistaken belief that the appellant intended to head‑butt him. In those circumstances, he would be no more responsible then if that state of affairs had been true and it follows, from his Honour's reasons, that his Honour would necessarily have found that he acted in self‑defence in those circumstances.
Therefore, while I am satisfied there was an error on his Honour's part in failing to address a necessary ingredient of self‑defence which had to be proved by the respondent, I am likewise satisfied that, had his Honour turned his mind to it, he must necessarily have come to the same conclusion which, in the end, he came to. In the circumstances, the error occasioned no miscarriage of justice and I would not interfere with his Honour's final conclusions on this score.

Ground 2

Ground 2 can be easily disposed of. It complains that the learned magistrate erred in law in not giving due consideration to the possibility of retreat by the respondent, when this finding was open on the evidence.
The respondent's evidence was that he was sitting on a stool when the appellant first entered the bar and then as the appellant approached him he stood up and the appellant 'got right in my face'.
There is nothing in the respondent's evidence which carries with it any implication that he might have been able to retreat in time, or at all. No such suggestion was even touched upon in his cross‑examination and no submissions to that effect were made to his Honour.
For his Honour to have found against the defendant on the basis that he was able to retreat and avoid the confrontation would have been sheer speculation. There is no merit in this ground of appeal.

Ground 3

Finally, the third ground of appeal complains that his Honour erred in fact and in law in finding that the respondent acted in self‑defence when the force used against the appellant was unreasonable. The appellant's submission in essence is that, if a push was reasonable in all of the circumstances, then that push should have been one of lesser force and not to the face.
The question of whether the degree of force used was reasonable in all of the circumstances is one of fact and so the question becomes whether that finding of fact was one reasonably open to his Honour on the evidence.
His Honour found that the respondent reasonably apprehended that the appellant was about to head‑butt him and that such a head‑butt was likely to result in serious injury. The question is not whether a push to the chest was reasonably open to the respondent but whether, in pushing the appellant to the face, he used more force than was reasonably necessary.
His apprehension was that the appellant would injure him by use of his head and a push to the face was clearly aimed at averting that risk. A push to the face was far more likely to avert the risk than a push to the chest, because a push to the face was more likely to cause the appellant to lose his balance, which he did, and to move his face away from the vicinity of the respondent's face. And a push is consistent with no more than an intention to remove the threat, rather than to inflict injury.
The push did not involve sufficient force to cause the appellant to fall backwards. The evidence is that he was pushed backwards but then kicked out at the respondent. His Honour rejected the proposition that the push caused the appellant's tooth to break at the gum line. The injuries sustained in the push were, his Honour found, a split lip and bruising. His Honour also implied in his reasons that the pre‑existing chipped tooth may have contributed to causing the split lip. No specific reference was made to a split gum.
The respondent reasonably apprehended that he was about to be attacked. A person under attack may react on the spur of the moment and cannot be expected to work out the precise degree of force needed to make effectual defence.
In all of the circumstances I am not satisfied that his Honour made any error in this regard. It was open to the court to find that the degree of force used was not out of proportion to the attack the respondent reasonably anticipated and was no more force than was reasonably necessary to defend himself. Ground 3 is not made out.
It follows that the appeal is dismissed.