POLICE v LLOYD No. SCGRG-98-785 Judgment No. S6941

POLICE v LLOYD
[1998] SASC 6941

Magistrates Appeal

Debelle J

This is an appeal against the dismissal of a complaint.
The respondent appeared in the Adelaide Magistrates Court charged with assault occasioning actual bodily harm contrary to s40 of the Criminal Law Consolidation Act 1935. The respondent pleaded not guilty. After a hearing, and having considered her reasons, the magistrate held on 30 April 1998 that the assault had occurred but the prosecution had not excluded the reasonable possibility that the respondent had acted in self-defence. The magistrate dismissed the complaint. The complainant appeals against that decision.
The alleged assault had occurred on 11 April 1997. On 27 March 1997 the Criminal Law Consolidation (Self Defence) Amendment Act 1997 (No 10 of 1997) came into force. The law as to self defence which applies in this case is the law as stated in the amending Act.
The prosecution case was that the respondent had assaulted a Mr Botting, an old man aged 81 years. At the time of the offence, the respondent was aged 37 years. Mr Botting was called to give evidence. He suffers from senile dementia. His evidence was confused. Soon after he had begun his evidence, the magistrate stopped the police prosecutor from attempting to lead any further evidence from him. The prosecution case as to how the assault occurred, therefore, consisted of evidence from two shop assistants, who saw aspects of the incident, and a videotaped interview with the respondent. The interview with the respondent occurred a little over three weeks after the incident.
The appellant does not challenge the findings of fact made by the magistrate. It challenges only the conclusion that the prosecutor had not excluded the reasonable possibility that the respondent had acted in self-defence. The following summary of the facts is taken from the magistrate’s findings.
Mr Botting was an elderly man who was relatively frail and used a walking stick.
The respondent was a carrier.
The incident occurred on 11 April 1997 in a laneway beside a pharmacy at the corner of Oaklands Road and Diagonal Road, Somerton Park.
Mr Botting was walking along the footpath approaching the pharmacy. He was approaching the laneway at the side of the pharmacy.
The respondent was driving his truck along the road travelling in the same direction as Mr Botting was walking. The respondent was to make a delivery to the pharmacy. The respondent turned left into the laneway.
After stopping the truck, the respondent got out and opened the rear doors of the truck, lowered a loading ramp at the rear of the truck, and climbed up the ramp on to the rear of the truck. The respondent began to stack the boxes of goods he was to deliver on the loading ramp.
While the respondent was stacking the boxes, Mr Botting approached the rear of the truck and stood in such a position that he blocked the respondent’s clear passage to carry the goods from the loading ramp into the pharmacy.
It appears that Mr Botting believed that the respondent had endangered him, when turning left into the lane, and wished to remonstrate with the respondent about his manner of driving. There was an altercation between Mr Botting and the respondent. Voices were raised. The magistrate found that the respondent’s driving had not endangered Mr Botting.
At one stage, during the altercation and while the respondent was in the back of the truck placing the boxes on the ramp, Mr Botting struck his walking stick against the side of the truck. The respondent was aware of that fact.
The respondent was in a hurry to make the delivery and to get on with the rest of his day’s work. Mr Botting was standing in a position which blocked the respondent’s passage, denying him free access to the back of the truck. The magistrate found that the respondent was “hemmed in” in a relatively tight space.
Although hemmed in, given time and the opportunity to speak on the matter, Mr Botting would have moved back or away and the respondent would then have had a free passage to carry the boxes into the pharmacy. However, had the respondent successfully left the truck in a way whereby he avoided Mr Botting, he would not have been able to carry the boxes in to the pharmacy without losing the ability to ward off blows by Mr Botting with his walking stick.
The respondent jumped down from the truck when all of the boxes were on the ramp ready for him to carry into the pharmacy. After he had done so, the respondent pushed Mr Botting in the chest with open hands, causing Mr Botting to lose his balance and fall to the ground. Mr Botting suffered injury when he hit the surface of the laneway or adjacent guttering. The magistrate found that, although the application of the force was voluntary and intentional, the respondent had no intention to cause any physical harm.
Later in her reasons, the magistrate also found that the respondent had jumped down and pushed Mr Botting in the chest to move him out of the way and enable him to carry the boxes into the pharmacy.
The fall caused Mr Botting to suffer six fractured ribs and some lacerations. He was admitted to hospital and treated for his injuries. The magistrate found that the respondent had caused Mr Botting actual bodily harm.
In his interview with the police the respondent gave his account of the incident. The transcript of the videotaped interview is not entirely correct. The corrections are noted in italics in the extract which I now quote. The extract contains the essence of the respondent’s account of the incident.
“Well what happened was... umm... it’s very close to the corner of Diagonal and Oaklands Road. There’s a little lane goes up the side of the chemist. It’s called Ramsey’s Chemist. I was doing a delivery there. I pulled into the lane and parked to make the delivery, and I got out of the truck and there was an old man at the back of the truck who had been waiting for me to go down the lane. Um... he was talking to me - I couldn’t really understand him. I don’t have a lot of time so... I didn’t mean to be rude and ignore him. I just said “Yes mate. Not a problem mate”, and I jumped up into the truck. He kept talking and I was pre-occupied and I sort of nodded and hummed. Then a couple of minutes later there was a BANG just as I was about to get out of the truck and he swung the walking stick at me. He had obviously hit the side of the truck.”
“Did he say anything to you when he swung the walking stick?”
“I have no idea what he was on about, I really don’t. When he swung the walking stick I obviously realised he was angry about something. I still to this day don’t know what. I went back into the truck to get another parcel, because there was a couple of parcels and I put them on the back of the truck and went back in and when I came out he was till there waving the walking stick around and I told him to push off. See, I wasn’t going to be whacked by a walking stick and I told him that what he’d already done was assault and that he should clear off before I got him into trouble. He ignored it, so I went back in the truck and got the rest of it out. It was all sitting there and I had to get down. I was very wary at that time because he was swinging his walking stick around. By that time I think a couple of ladies had come out of the chemist. They must have heard the bang on the side of the truck with the walking stick... it was quite hard and very loud - and they probably would have heard something verbal that was going on, because by that time I was very angry.”

The respondent also gave evidence. He was extensively cross-examined. His evidence was to the same effect as his statement to the police. In both his interview with the police and his evidence he said that he intended to hold Mr Botting at arm’s length. He did not think he had pushed him.

That was the factual background against which the magistrate concluded that the prosecution had not excluded the reasonable possibility that the respondent had acted in self-defence. The appellant submits that the magistrate has failed correctly to apply the provisions of s15 of the Criminal Law Consolidation Act in more than one respect.
Mr Hinton, who appeared for the appellant, began by submitting that an accused person bears the evidential burden of adducing sufficient evidence to raise the issue of self-defence. It was not sufficient, Mr Hinton said, simply to raise the spectre of the issue. It was implicit in the argument that the respondent had not discharged the evidential burden. For the reasons which follow, I think Mr Hinton put the matter too absolutely.
In Morgan v Colman (1981) 27 SASR 334 at 337 Wells J described the evidential burden in these terms:
“A person accused of having used unlawful force is not obliged to prove that he was acting in self-defence. If it is reasonably possible that he was acting in self-defence, the prosecution will not have proved that he was acting unlawfully. In short, provided there is evidence relevant to the issue fit for the consideration of the jury or the court (as the case may be), the prosecution must prove beyond reasonable doubt that he was not acting in self-defence in accordance with the foregoing principle.”

In R v Fahey (1978) 19 SASR 577 Wells J held that there was “sufficient circumstantial evidence” to place the issue before the jury. At the same time he said that he would have made some strong observations as to the difficulty that the defence would encounter. In the same case White J (at 593), relying on passages in Viro v The Queen (1978) 141 CLR 88, expressed the view that the issue should go to the jury whenever defence counsel raises the issue of self-defence in circumstances where it is not patently capricious for him to do so. He added that the jury should pass on the question “if the issue of the claim seems tenuous, perhaps even far-fetched”. I do not understand Wells J in Morgan v Colman to seek to qualify what had been said in R v Fahey. Furthermore, I do not understand the observations of Wells J in Morgan v Colman to have been altered by any later decision or by s15(5) of the Act. The position was expressed in similar terms by the majority of the High Court in Zecevic v Director of Public Prosecutions (1987) 162 CLR 645 at 657. Adapting the passage to give it general application, the effect of the majority decision was that, once the evidence disclosed the possibility that an act was done in self-defence, the prosecution has the burden of disproving that fact, that is to say, the burden falls on the prosecution to prove that fact. Thus, there is no evidential burden, as such, on an accused person. The accused might not adduce any evidence. All that is necessary is that the facts disclose that it is reasonably possible that the appellant was acting in self-defence. In this case, there was evidence which the magistrate accepted that Mr Botting had a walking stick and that he was close enough to the respondent to strike him with it. It was implicit in the finding that Mr Botting was prepared to use his stick. There was, therefore, evidence which disclosed the possibility that the act of pushing Mr Botting was done in self-defence. The prosecution then had the burden of proving beyond reasonable doubt that the respondent did not come within the provisions of s15.

For the purposes of this trial, it was necessary for the magistrate to consider only the provisions of s15(1) and s15(3). The magistrate spent some time considering whether the prosecution had proved the matters in s15(4). There was no occasion for her to do so, as there was nothing in the evidence which called that provision into operation. The magistrate also considered the operation of s15A. She correctly found that there was no evidence to suggest that the respondent had acted in any way which attracted the operation of that provision. The respondent was not acting to protect property from unlawful appropriation, destruction, damage or interference. As the magistrate found:
“The defendant’s actions are inconsistent with the holding of any genuine belief that the boxes were at risk. He left them unguarded on the step when he went back inside the truck for more boxes. I do not accept that the defendant held any genuine belief that the truck was endangered.”

There is no appeal against that aspect of her decision.

The terms of s15(1) and (3) required the magistrate to examine whether it was a reasonable possibility on the whole of the evidence that either of the alternatives in s15(1) were present, namely,

(a)that the respondent genuinely believed that the conduct to which the charge related to be necessary and reasonable for a defensive purpose; and
(b)the respondent’s conduct was, in the circumstances as the respondent genuinely believed them to be, reasonably proportionate to the threat that the respondent genuinely believed to exist.

A defensive purpose is defined in s15(3). It is either self-defence, defence of another or the prevention or termination of the unlawful imprisonment of oneself or another. In this case, the defensive purpose which was suggested by the evidence was self-defence. The only issues which the magistrate had to determine, therefore, were the issues in s15(1)(a) and (b). If the prosecution failed to prove beyond reasonable doubt that either was not a reasonable possibility, it had failed to prove its case. I deal with each in turn.

The magistrate was required by s15(1)(a) to examine whether the respondent genuinely believed that his act of pushing Mr Botting was both necessary and reasonable for the purpose of defending himself. That required the magistrate to consider whether the respondent genuinely believed that he was in a situation where he had to defend himself and that it was necessary and reasonable to push Mr Botting away. This required the magistrate to consider whether it was a reasonable possibility
(i).... that the respondent genuinely believed that the safety of his person was threatened and, if so,
(ii)whether the respondent genuinely believed that he had to act to defend himself from that threat, and, if so,
(iii).. whether the respondent genuinely believed that it was both necessary and reasonable to push Mr Botting in the way he did in order to defend himself.

In other words, the task first required by s15(1) is to examine the belief of the accused and to determine whether that belief was genuinely held. It is a subjective test in the sense that it is the belief of the accused which must be examined. The court is not, at this stage, concerned to examine whether a reasonable person would hold that belief. The court or a jury is, however, required to determine whether it is a reasonable possibility that the accused held that belief. Expressed in terms of what the prosecution had to prove in this case, the question was whether the prosecution had proved beyond reasonable doubt that the respondent did not genuinely believe any of the above three matters. The concept of a genuine belief carries with it the necessity to consider not only what the accused person may say as to his belief but whether, in all the circumstances, that stated belief was genuine: R v Gillman (1994) 62 SASR 460 at 465.

When considering the genuineness of the belief of an accused person it is proper, I think, to have regard to the practical rules stated by Wells J in Morgan v Colman at 336 to 337.
“(a).. Defence means defence; a person who claims to have been acting in justifiable self-defence must have acted, and believed himself to have been acting, in defence. To engage willingly in combat is not acting in self-defence.
(b)Self-defence can never be made to cover for aggression; if a person provokes, or deliberately leads, another to attack him, and he then uses that attack as an excuse or pretext for attacking the other person, he cannot cry defence.
(c).... Self-defence can never be called in aid to justify retaliation or revenge if the danger is over, and the occasion for self-defence is at an end.
(d)A person who, according to the circumstances as he understands them, genuinely believes that he is threatened with an attack, is not obliged to wait until the attack begins. A person so threatened may use reasonable measures to make the situation safe, and he does not act unlawfully merely because he forestalls or tries to forestall the attack before it has begun.”

These are not absolute rules but, instead, factors to be weighed when deciding whether the accused had a genuine belief. Although the law of self-defence has been examined on a number of occasions since the decision in Morgan v Colman and there are new statutory provisions in the form of ss15 and 15A of the Criminal Law Consolidation Act, those observations are still relevant and, according to circumstances, provide a yardstick by which the genuineness of the asserted belief might be tested, remembering at all times that the burden of proof remains on the prosecution.

The magistrate concluded that the prosecution had not excluded the reasonable possibility that the respondent genuinely believed that he was subject to a threat and had to push Mr Botting out of the way. Before examining the appellant’s contentions concerning this finding, it is convenient to examine what the magistrate was next required to do when considering the issues under s15(1).
The next task for the magistrate was to examine the issues arising out of s15(1)(b). This provision is concerned with the question whether the accused has responded reasonably to the perceived threat. Section 15(1)(b) gives effect to what has been the law at least since Viro v The Queen (supra), that the force used must not be disproportionate to the necessitities of the occasion: see also Morgan v Colman at 337. However, s15(1)(b) departs from the decision of the High Court in Zecevic v Director of Public Prosecutions (supra) by requiring the assessment of the reasonableness of the accused’s response to be made bearing in mind the belief of the accused as to the matters referred to in s15(1)(a). Expressed another way, s15(1)(b) requires the assessment of the reasonableness of the response of the accused to be made by reference to the circumstances as the accused genuinely believed them to be. With that factual background, it is necessary objectively to decide whether the accused has acted in a way which was reasonably proportionate to the threat which the accused genuinely believed to exist. In short, the test requires an objective assessment to be made of the reasonableness of the response of the accused having regard to the nature of the threat which the accused subjectively and genuinely believed to have existed. Section 15(1)(b) gives effect to the law as stated by Wells J in Morgan v Colman at 336:
“It is both good sense and good law that, for the purposes of his defence, that person may do, but he may only do, what is reasonably necessary for the purpose, having regard to all the circumstances as he genuinely believed them to be at the time. If he does no more than is reasonably necessary in those circumstances, then such force as he employs is justifiable and lawful. If, in those circumstances, force by way of defence is not called for, or if, though some measure of defence is warranted, he plainly oversteps the mark and uses force that is not reasonably necessary, then what he does is unlawful. That is the general rule.”

When considering the reasonableness of the response regard can be had to the practical rules identified in that decision by Wells J, namely,

“The force used must not be disproportionate to the necessities of the occasion. If a man is threatened with a slap on the face or a kick on the shins, he is plainly not entitled to shoot his tormentor or plunge a knife into him.
In determining what were the circumstances that a person believed to exist, and whether he believed that it was necessary to act in self-defence, regard may be had to the grounds of that person’s belief and to whether they were reasonable. The reasonableness or the reverse of such grounds is not, of itself, decisive of the existence or non-existence of the belief.”

At the same time, a court or jury must not weigh too precisely the exact amount of the defensive action. Again, it is apposite to adopt the observations of Wells J in Morgan v Colman at 337:

“Reference to those everyday precepts does not vary or detract from the general principle above-stated. In the long run, every case must depend on its own particular facts. Moreover, the principle must be applied fairly; a court or jury is not expected to weigh on a knife edge the exact measure of legitimate defensive action. Account must be taken of all the circumstances as the person claiming to have acted in self-defence genuinely believed them to be, and the question answered whether he used reasonable force, having regard to the trials of the moment, or whether he plainly overstepped the mark.”

Mr Hinton submitted that it was not open to the magistrate to conclude that it was a reasonable possibility that the respondent genuinely believed that a threat existed and he had to act to defend himself. He pointed to the fact that the respondent was working on the tray of his truck when Mr Botting approached. He was, therefore, not in any way subjected to any threat from Mr Botting. He submitted that the respondent created the circumstances in which the incident occurred by jumping down from the truck. He relied on the following passage in the reasons of the magistrate:
“The prosecution has clearly demonstrated, from the evidence of Mrs. Warren in particular, that there were no reasonable grounds for believing that to be able to get out of the truck and to unload the pharmacy property without either being physically injured [or the truck being damaged] it was necessary to jump down and push the elderly man in the chest. It may have been the quickest way but it was certainly not the only way. The same result could reasonably have been achieved without the use of force, albeit much more slowly.”

That passage appears in a section of the magistrate’s reasons headed “The common law test” where the magistrate, rather unnecessarily, examined what the position would have been at common law. She was concerned to determine whether the belief of the respondent was objectively reasonable. That was not the task she was required to undertake. Instead, she had to consider whether the respondent held a genuine belief. Later in her reasons she dealt with the issues arising under s15(1) in these terms:

“It is more than possible that the defendant genuinely believed that in order to safeguard himself from blows struck with the walking stick it was necessary and reasonable to physically push the elderly man away from the back of the truck. It is probable that he held this belief.
It is also probable that the defendant genuinely held the belief that if he tried to go about his business, in the process losing the use of his arms as a defensive shield, he would be struck with the walking stick.
On the evidence, the reasonable possibility has not been excluded that the defendant genuinely believed that the elderly man had deliberately swung the walking stick dangerously close to the defendant while the defendant was in the back of the truck, putting boxes on the ramp. Such a belief may have been without foundation, just as the elderly man’s belief that he had been endangered by the driving may well have been without any real factual foundation, but it is reasonably possible that it was held by the defendant.
If there was a genuine belief in those circumstances, I am of the view that the conduct was reasonably proportionate to the threat. It is reasonably possible. The defendant’s verbal attempts to end the discussion and go about his business had been unsuccessful. While a punch would clearly have been disproportionate, I am unable to say that attempting to shove the elderly man aside and out of reach, in order to be able to safely retrieve the boxes, was unreasonably disproportionate to the threat the defendant probably believed he faced.
The prosecution has not excluded the possibility that the defendant acted with a defensive purpose. It is reasonably open on the evidence.”

The first three paragraphs contain the magistrate’s reasons for concluding that the respondent genuinely held the required belief. That belief had been expressed by the respondent in his interview with the police and in his evidence. It was, of course, necessary for the magistrate to examine whether that belief was genuinely held. Mr Hinton’s submissions tended to descend to an examination of the reasonableness of the respondent’s belief. That is to apply the wrong test and I am not persuaded by his argument. The magistrate’s conclusion might have been generous to the respondent, particularly as to the respondent’s belief as to the reasonableness of his response, but I am not satisfied that the appellant has demonstrated why this court should interfere with it.

The next ground of appeal was that the magistrate had failed to assess the probability that the belief was not one which was genuinely held by the respondent. The court or a jury must, of course, determine whether the belief was genuinely held. Regard will be had to objective facts for the purpose of doing so. But the court or a jury must not allow this exercise to descend to a determination of the reasonableness of the belief. The argument presented by Mr Hinton again tended in that direction. Again, I am not persuaded that I should interfere with the magistrate’s conclusion.
The third ground of appeal is that the magistrate had erred in finding that the respondent’s conduct was reasonably proportionate to the gravity of the threat as he perceived it. The magistrate’s reasons are set out in the fourth paragraph quoted from her reasons. The magistrate had already found that the respondent had pushed Mr Botting in the chest with open hands and that the force of the push had caused Mr Botting to lose his balance and fall to the ground. I have serious misgivings whether the magistrate was correct in reaching this conclusion. Once the respondent had jumped down from his truck, he could have remonstrated with Mr Botting to move away and, if Mr Botting had refused, he could have taken less forceful action to move Mr Botting out of the way so that he could move the boxes into the pharmacy without fear of being struck while he was holding the boxes. Mr Botting was obviously an elderly man. He was using a stick which indicated a degree of frailty. In all the circumstances, a push made with sufficient force to cause Mr Botting to fall over seems to go beyond a reasonable response to the situation. In making these remarks, I do not overlook the warning of Wells J not to weigh the exact measure of legitimate defensive action on a knife edge. However, I also remind myself that appellate courts are reluctant to interfere with a verdict of acquittal based upon a reasonable doubt: Thorogood v Warren (1979) 20 SASR 156 at 159 where Zelling J observed that a finding of reasonable doubt owes much to the atmosphere of the trial and the appraisal of the witnesses by the court of first instance, and neither of those things are readily susceptible to review by an appellate court. I am, therefore, not prepared to interfere with the verdict of the magistrate.
The fourth ground of appeal is that the magistrate had erred to such an extent in her interpretation and application of s15 that her verdict was unsafe and unsatisfactory. The magistrate’s approach raises some questions as to whether she correctly understood all aspects of s15. But I am not satisfied that they are of such a nature as to require the court to interfere with her verdict.
The fifth ground of appeal was abandoned.
For all of these reasons, I dismiss the appeal.

[1998] SASC 6941

10 November 1998