Police v M - [2004] SASC 281

SUPREME COURT OF SOUTH AUSTRALIA
(Youth Court Appeal: Criminal)
POLICE v M
Judgment of The Honourable Justice Perry
16 September 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER
TRAFFIC OFFENCE - TRIVIALITY
The police appealed against the finding by a magistrate following the respondent's plea of guilty to driving under the influence of alcohol, that the offence was trivial - the respondent left a hotel in the early hours of the morning after a long drinking session and sat in his car in the car park, but not intending to drive it - a gang of youths attacked him and the car, smashing the back window - in panic, he drove off and was apprehended by the police after they had followed him through nearby streets - the magistrate accepted that the respondent only drove in response to the threats and attack from the gang of youths - consideration of the relevance of circumstances providing an explanation for the driving, to the question whether it might properly be characterised as trivial - appeal dismissed.
Road Traffic Act 1961 s 47a, s 47b and s 47(3)(b), referred to.
Siviour-Ashman v Police (2003) 85 SASR 23; Walden v Hensler (1987) 163 CLR 561; Police v Bainbridge (unreported) Martin J, 3 November 2003; Police v Cadd and Ors (1997) 69 SASR 150; Everett v The Queen (1994) 181 CLR 295; Hemming v Droulias (2000) 206 LSJS 389, considered.

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE
The appellant by cross-appeal was convicted of driving under the influence of alcohol - he had entered his vehicle, not intending to drive it, in the early hours of the morning, but drove off in panic when he and the vehicle were attacked by a gang of youths - his plea of self-defence was rejected by the trial magistrate - discussion of the question whether a plea of self-defence can be raised in circumstances other than those where the defendant commits what would otherwise constitute an assault - discussion of the expression "defensive purpose" and of the reformulated statutory codification of self-defence in s 15 of the Criminal Law Consolidation Act 1935 - consideration of the question whether the terms of the amendments to s 15 of the Act, which post-dated the offence, could be used as an aid to its interpretation - held that the defence necessarily involved the concept of the lawful use of force by a defendant and accorrdingly was not open in the circumstances - appeal dismissed.
Criminal Law Consolidation Act 1935 s 15, s 15A and s 15B, referred to.
Zecevic v DPP (1987) 162 CLR 645; R v Lawson and Anor [1986] VR 515; Russell on Crime 12th edition, Vol 1, page 680; Stephen's Digest of the Criminal Law 9th edition (1950) pages 251-253; Halsbury's Laws of England 4th edition (Vol 11(1) par [498]; Halsbury's Laws of Australia The Law Book Company, Vol 9, chapter 7; Gillies, Criminal Law 4th edition (1997) Law Book Company, chapter 15, p; Reg v Howe 1958) 100 CLR 448; Deputy Federal Commissioner of Taxes (SA) v Elders Trustee & Executor Co Ltd (1936) 57 CLR 610; Maxwell, Interpretation of Statutes 6th ed (1920); Ormond Investment Co v Betts (1928) AC 143; Cape Brandy Syndicate v Inland Revenue Commissioners (1921) 2 KB 403; Port of London Authority v Canvey Island Commissioners (1932) 1 Ch 446; Allina Pty Ltd v FCT (1991) 99 ALR 295; Re MacManaway and Re House of Commons (Clergy Disqualification) Act 1801 [1951] AC 161; Kirkness (Insp of Taxes) v John Hudson & Co Ltd [1955] AC 696; Thompson v JT Fossey Pty Ltd (No 1) (1978) 20 ALR 496; Pearce & Geddes, Statutory Interpretation in Australia 3rd ed (1988) par 3.25, considered.

POLICE v M
[2004] SASC 281
Magistrates Appeal: Criminal

PERRY J. This is a police appeal against the sentence imposed in the Youth Court sitting at Port Lincoln following the respondent’s conviction on a charge of driving under the influence of liquor.
There is a cross-appeal against the conviction on the ground that the magistrate erred in dismissing a defence of self-defence.
The respondent was charged with three counts, all arising out of a passage of driving on various streets within the township of Port Lincoln in the early hours of the morning of 1 March 2003.
The counts were respectively: driving under the influence of liquor (Road Traffic Act 1961, s 47); driving with the prescribed concentration of alcohol (Road Traffic Act 1961, s 47a and s 47b); and driving in contravention of a condition endorsed on the respondent’s probationary driving licence (Motor Vehicles Act 1959, s 81a).
On the first count, the trial magistrate convicted the respondent, but found the offence trifling. He proceeded to impose a fine of $700, together with costs and other fees, making a total of $1,085.20. He imposed a licence disqualification for a period four months.
The magistrate dismissed the second count, and recorded a conviction without penalty on the third count.
It is from the penalty imposed on the first count that the appeal is brought.
The appellant advances two grounds of appeal. They are:
“1.That the learned sentencing Magistrate erred in finding that the offence of driving a motor vehicle while so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the vehicle was trifling within the meaning of s 47(3)(b) of the Road Traffic Act.
2.That, in all the circumstances, the sentence of a $700 fine and disqualification from holding a driver’s licence for a period of four months is manifestly inadequate.”
In his cross appeal, the respondent advances one ground:
“1.That the learned Magistrate erred in finding that self-defence per s 15 of the Criminal Law Consolidation Act 1935 (SA) did not apply to the offences before the trial Court.”
Facts
Three police officers gave evidence on behalf of the complainant. In addition, as part of the prosecution case, several certificates were tendered which operated as presumptive proof of the concentration of alcohol present in the respondent’s blood.
The respondent gave evidence and called two other witnesses.
Constable Zuromski’s evidence was that at about 3.10 am on the morning in question, together with Constable McLean, he drove to the rear of the Tasman Hotel. They made their way through the car park and drove out onto a street called Washington Street.
They then encountered a group of people standing in the middle of the road. A young woman who was in the group told the police officers that a car window had been smashed. There was smashed glass on the road. She pointed down the road to indicate the direction in which the car had driven off.
The police officers made off in their vehicle and pursued, what they assumed to have been the vehicle which was pointed out to them, which was still visible some distance down the road.
Both vehicles were driven through several streets. The course of the car appeared normal, except for one incident when it swerved from the centre lane, or the centre line to the far left of the road and nearly collided with the gutter, following which it performed a large, sweeping right hand turn, running over some rumble strips in the course of doing so. Eventually the police officers caught up with it, and signalled the driver to stop.
The driver, who turned out to be the respondent, got out of his car and started to walk towards the police officers. He was observed to be unsteady on his feet and stumbled. His breath smelt of alcohol. His speech was slurred, his clothing dishevelled and his eyes slightly bloodshot.
Constable Zuromski formed the view that he was grossly affected by alcohol.
After a brief conversation at the scene, the respondent was taken to Port Lincoln police station where a breath analysis test was administered. This indicated that the respondent’s blood alcohol level was 0.171 grams per 100 millilitres of blood.
While at the police station, the respondent vomited on two occasions.
Constable McLean’s evidence was to much the same effect as that given by Constable Zuromski. His evidence was that the respondent appeared to be “at the lowest end of grossly intoxicated”.
Constable McLean recalled that he noticed that the back window of the respondent’s car was smashed. He asked the respondent and his two passengers about it. His evidence was:
“They weren’t too concerned. They didn’t offer any explanation as to how it happened and they were more concerned how they were going to get home.”
According to Constable McLean, they said that it had just before then been smashed in the Coles car park, which apparently was the car park behind the hotel, but they did not know by whom.
Senior Constable David McDonald gave evidence that he was on duty at the police station at about 3.30 am, when the respondent was brought in by the other two police officers. He submitted the respondent to the breath analysis test and completed the necessary paperwork.
He made a note that when he asked the respondent whether he wanted a blood test kit, the respondent answered:
“What would be the point of that. I don’t know. I was just driving away from people who wanted to start fights.
SENIOR CONSTABLE MCDONALD: Yes or no to the blood test kit.
THE RESPONDENT: I’ll have a blood test then. I don’t care. I know I’m pissed. I’m over the limit. I know that.”
On a pro forma, Senior Constable McDonald made various notes of his observations of the respondent. They conclude:
“Degree of sobriety - grossly affected.”
The respondent’s evidence was that, at the time, he was 17 years of age and held a probationary driver’s licence. He said that accompanied by two friends, he arrived at the hotel at about 10.00 pm or 10.30 pm and that he spent the time while he was there drinking and socialising.
When the hotel closed, which was at about 3.00 am, he made his way to the car park to make sure his car was locked up, as he wanted to make sure that an expensive CD player in the car was secure.
He denied that he intended to drive. He said that he was intending to walk to a place at which he could get some food, known as The Pantry.
When he and two friends, Adam Hage and Evan Whillas, were walking to the car, a girl known to the respondent warned him that he should “get out of there”, because “something was going to happen” to him.
He and his friends got into his car and waited. He denied that he started the engine. He said that he was playing music when a group of young men approached them.
His evidence was:
“A.I was sitting in the driver’s seat listening to music and Jordan Singh came up to the passenger side of the car and then Justin Smith came up the passenger side of the car and Justin poked his head in and asked who Jake was.
Q.Where did Justin poke his head in the car.
A.Through the passenger window.
Q.Who was sitting there.
AEvan.
Q.What did Justin Smith say.
A.Who’s Jake.
Q.Did you say anything to that.
A.I said, that’s me, what is the matter.
Q.Did you know Justin Smith before.
A.No, been the first time I have talked to him. Wondered why he wanted to know who I was.
Q.What happened next.
A.He got back out of the window and charged around my side of the car.
Q.You say he charged around, how did he actually do that.
A.Just quickly charged around there trying to get to my side of the car.
Q.What did you do.
A.I closed the door and locked it.
Q.Why did you do that.
A.Because he was trying to get to me or something because he wasn’t happy and, yes.
Q.What happened when you closed your door.
A.When I closed my door and he got to the - pointed. He was yelling stuff at me like get out, and punching my window. Keeped getting harder and harder and harder.
Q.You say he was punching the window. Was he hitting with his hands or fist.
A.With fist.
Q.How many time did he hit it.
A.Probably four or five times.
Q.Which window was this on your car.
A.The side window of my driver’s door.
Q.How far away was your face from the window.
A.Twenty centimetres, thirty centimetres.
Q.What were you doing whilst he was punching the window.
A.I was just hoping he was going to go away because, yes.
Q.What happened next.
A.I realised he wasn’t going away. The punching got harder. He was going to break the window pretty soon and I was, were screaming get out of the, there so, started the car up and drove off.
Q.Why exactly did you start the car and drive off.
A.Scared the window was going to break and scared for my safety. I don’t know what he was going to do.
Q.Were there other people in the car park when that happened.
A.There had been an Aboriginal walk past beforehand and there was a group across the road I think.
Q.Where was Jordan Singh when Justin Smith was banging on the window.
A.He was still over the passenger side of the car.
Q.Was he doing anything.
A.I’m not sure, I wasn’t looking at him.
Q.What were you intent on doing when you started the car up and moved off.
A.Just getting out of there before something happened to me, my mates or the car.
Q.What did you think was going to happen if you stayed there.
A.I was going to get beaten.”
He went on to say that as he drove off and was pulling into Washington Street, Justin Smith hit the rear window, breaking it.
He said that he then panicked, and kept driving, eventually realising that he was being followed. He did not realise that the vehicle following him was the police, until they came up with sirens switched on and lights, whereupon he pulled over immediately.
The respondent called both Hage and Whillas to give evidence on his behalf.
In the course of his evidence, Mr Hage admitted that he was “quite drunk” at the time. He remembered, however, that after leaving the Tasman, the intention of the three of them was to catch a taxi to go The Pantry, and then to go to the respondent’s home. He confirmed that they went across to the respondent’s car to “make sure his car was safe”, and his next memory is of the car being “pretty well surrounded” and that two or three people started “belting on the windows”. When asked what he thought might happen if they had remained in the car park, he said, “We would’ve been belted up”.
Mr Whillas’s evidence was to much the same effect as to the events which occurred after the three of them had left the hotel. He remembered the car being surrounded by a number of people, the banging on the window, and the respondent driving off.
He said “Just as we got out of the car park, big smash, and I remember I looked around and the window was totally broken, gone”.
He said that before the respondent drove off, he had told the respondent that “We should start getting out of here”.
Against the background of that evidence, putting aside the question of self-defence, it was inevitable that the respondent stood to be convicted of driving under the influence of alcohol.
However, through his counsel Mr Semmens, the respondent contended that the circumstances were such as to raise a defence of self-defence.
Self-defence
In advancing his submissions as to self-defence, Mr Semmens of counsel for the respondent relied on s 15 of the Criminal Law Consolidation Act 1935. That section was amended in 1997,[1] and was further amended in 2003.
[1] Act No 10 of 1997 which came into operation on 27 March 1997.
The 2003 amendment[2] came into operation on 27 July 2003, which is after the offending now in question.
[2] Act No 28 of 2003 which came into operation on 27 July 2003.
It follows that the terms of the section relevant to this case are as amended in 1997, but before the amendments which were effected in 2003.
Relevantly, s 15 was, at the time, as follows:
“Self defence
15.(1)    It is a defence to a charge of an offence if-
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b)the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(2)…..
(3)For the purposes of this section, a person acts for a defensive purpose if the person acts-
(a)     in self defence or in defence of another; or
(b)    to prevent or terminate the unlawful imprisonment of himself, herself or another.
(4)However, if a person-
(a)     resists another who is purporting to exercise a power of arrest or some other power of law enforcement; or
(b)    resists another who is acting in response to an unlawful act against person or property committed by the person or to which the person is a party,
the person will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully.
(5)If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
Defence of property, etc.
15A.(1)    It is a defence to a charge of an offence if-
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable-
(i)to protect property from unlawful appropriation, destruction, damage or interference; or
(ii)to prevent criminal trespass to land or premises, or to remove from land or premises a person who is committing a criminal trespass; or
(iii)to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large; and
(b)if the conduct resulted in death - the defendant did not intend to cause death nor did the defendant act recklessly realising that the conduct could result in death; and
(c)the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(2)…..”
The repealed s 15, which was replaced by the 1997 amendment, provided, inter alia, that:
“A person does not commit an offence by using force against another if that person genuinely believes that the force is necessary and reasonable-
(i)to defend himself, herself or another; or
……..” (emphasis added)
Insofar as it spoke of the use of force, the repealed section reflected the common law formulation of the defence, which was predicated upon the view that the use of a reasonable degree of force against another, which would otherwise constitute an assault, would in certain circumstances be justified as legitimate self-defence. In the course of time, various refinements to the principle were developed which were overtaken, at least in South Australia, by statutory provisions which eventually led to statutory codification.
The process of construction of s 15 as it stood at the time of the offence in question is informed both by reference to the terms of the section as it was before the 1997 amendment, and by reference to the common law principles. As I will explain, it may also be assisted by reference to the terms of the subsequent amendment.
Self-defence at common law had its origins in homicide, more particularly the distinction drawn in the early cases, between justifiable and excusable homicide.[3]
[3] See the discussion in Zecevic v DPP (1987) 162 CLR 645, and the remarkably erudite historical summary by Ormiston J in R v Lawson and Anor [1986] VR 515 at 554-568.

Unlawful killing involves an extreme use of force. But in its progressive extension to cases falling short of what would otherwise constitute homicide, the requirements of the defence remained focused upon the use of force and the question of the reasonableness of the force used by the defendant in response to force or the threat of force. See, for example, Russell on Crime.[4]
“The use of force is lawful for the necessary defence of self or others or property; but the justification is limited by the necessity of the occasion, and the use of unnecessary force is an assault.” (footnotes omitted)
[4] 12^th edition, Vol 1, page 680.
See also Stephen’s Digest of the Criminal Law:[5]
[5]   9^th edition (1950) pages 251-253.
“Article 305
Private Defence
The intentional infliction of death or bodily harm is not a crime when it is inflicted by any person in order to defend himself or any other person from unlawful violence, provided that the person inflicting it observes the following rules as to avoiding its infliction, and inflicts no greater injury in any case than he in good faith and on reasonable grounds believes to be necessary when he inflicts it:
(a)If a person is assaulted in such a manner as to put him in immediate and obvious danger of instant death or grievous bodily harm, he may defend himself on the spot, and may kill or wound the person by whom he is assaulted.
(b)If a person is unlawfully assaulted,
(i)     in his own house;
(ii)    in the execution of a duty imposed upon him by law;
(iii)   by way of resistance to the exercise of force which he has by law a right to employ against the person of another;
he may defend himself on the spot, and may use a degree of force for that purpose proportioned to the violence of the assault, and sufficient (in case iii) to enable him not only to repel the attack made upon him, but to effect his original purpose; but a person using force in the execution of a duty imposed upon him by law, or in order to effect a purpose which he may by law effect in that manner, and not being assaulted, is not entitled to strike or hurt the person against whom he employs such force, merely because he is unable otherwise to execute such duty or fulfil such purpose, except in the cases provided for in Article 304.
(c)If a person is unlawfully assaulted by another without any fault of his own, and otherwise than in the cases provided for in clauses (a) and (b), but with a deadly weapon, it is his duty to abstain from the intentional infliction of death or grievous bodily harm on the person assaulting, until he (the person assaulted) has retreated as far as he can with safety to himself.
But any person unlawfully assaulted may defend himself on the spot by any force short of the intentional infliction of death or grievous bodily harm; and if the assault upon him is notwithstanding continued, he is in the position of a person assaulted in the employment of lawful force against the person of another.
(d)If two persons quarrel and fight, neither is regarded as defending himself against the other until he has in good faith fled from the fight as far as he can; but if either party does in good faith flee from the fight as far as he can, and if, when he is prevented either by a natural obstacle or any other cause of the same nature, from flying further, the other party to the fight follows and again assaults him, the person who has so fled may defend himself, and may use a degree of violence for that purpose proportioned to the violence employed against him.” (footnotes omitted)
In more modern textbooks, self-defence is consistently explained in terms of the lawful use of force: for example, in Halsbury’s Laws of England:[6]
“If the act alleged to be an assault is done in self-defence, it is justified and no unlawful act is committed provided that no more force is used than is necessary for mere defence; and self-defence is a defence even to a charge of assault involving wounding or grievous bodily harm.”
[6] 4^th edition (Vol 11(1) par [498].
In Halsbury’s Laws of Australia,[7] the author’s treatment of self-defence is introduced by the following:
“All jurisdictions provide defences to the infliction of what would otherwise be unlawful violence where the force was used in self-defence, defence of another or defence of property.”
[7] The Law Book Company, Vol 9, chapter 7.
In Gillies Criminal Law[8] the author states:
“.. the courts have recognised a considerable number of distinct situations in which force may lawfully be used …”
[8] 4^th edition (1997) Law Book Company, chapter 15, page 310.
In Reg v Howe,[9] Dixon CJ observed:
“… An attack of a violent and felonious nature, or at least of an unlawful nature, was made or threatened so that the person under attack or threat or attack reasonably feared for his life or the safety of his person from injury, violation or indecent or insulting usage. This would mean that an occasion had arisen entitling the person charged with murder to resort to force to repel force or apprehended force.”
[9] (1958) 100 CLR 448 at 460.
It is the wording of s 15 as re-enacted in 1997, more particularly the fact that, unlike its predecessor, it no longer expressly refers to the use of force, which admits of the argument put forward by the appellant.
Instead of expressing the defence in terms of the reasonable use of force against another, the section as re-enacted in 1997 recast the defence on the footing that it was available if the defendant “genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose” and that that conduct was “reasonably proportionate to the threat that the defendant genuinely believed to exist” (s 15(1)).
The question which arises is whether the recasting of the defence in those terms has the consequence that the defence then became available, not only in circumstances where a defendant used force against another, but when the defendant’s conduct took on some other form, which would ordinarily constitute an offence.
If one can be permitted to have regard to the later amendments, more particularly the amendments effected in 2003, some light may be thrown on the interpretation to be placed upon s 15(1).
The 2003 amendments added a new section 15B which reads:
“A requirement under this division that the defendant’s conduct be (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist does not imply that the force used by the defendant cannot exceed the force used against him or her.” (emphasis added)
In referring to the “force used by the defendant” in comparison with the force used against him or her, s 15B is couched in terms which clearly reflect the essential characteristic of the common law of self-defence, namely, a defence of lawful use of force in response to force, or the threat of it, from another.
Can the subsequent enactment of s 15B, which clearly reflects that view, be used as an aid to interpreting s 15 as it stood before s 15B was enacted?
The relevant principle of statutory interpretation appears to be, that light may be thrown on the interpretation to be placed upon a statutory provision by the terms of an amending statute, but only in circumstances where the interpretation of the unamended statute was, in a relevant sense, ambiguous. See Deputy Federal Commissioner of Taxes (SA) v Elders Trustee & Executor Co Ltd.[10]
[10] (1936) 57 CLR 610.
In that case, the question arose whether the terms of a statute which amended the Land Tax Assessment Act 1910-1912 (SA), could be taken into account in determining the meaning to be attributed to the unamended Act.
In the joint judgment of Dixon, Evatt and McTiernan JJ,[11] the following passage occurs:
“Doubtless …in drafting the Act of 1930, it was supposed that the exclusion by the Act of 1914 of Crown leases from the exemption took effect for the financial year beginning 1^st July 1914. But, in our opinion, the supposition ought not to lead us to give that effect to the Act of 1914. ‘An Act of Parliament does not alter the law by merely betraying an erroneous opinion of it’ (Maxwell, Interpretation of Statutes[12] and Ormond Investment Co v Betts.[13] ‘Where the interpretation of a statute is obscure or ambiguous, or readily capable of more than one interpretation, light may be thrown on the true view to be taken of it by the aim and provisions of a subsequent statute’.[14] In Cape Brandy Syndicate v Inland Revenue Commissioners,[15] Lord Sterndale said: ‘I quite agree that subsequent legislation, if it proceed upon an erroneous construction of previous legislation, cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation, then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier’. In reference to this statement, Lord Buckmaster said in Ormond Investment Co v Betts:[16] ‘That is, in my opinion, an accurate expression of the law, if by “any ambiguity” is meant a phrase fairly and equally open to divers meanings.’ But it is not permissible to construe an unambiguous phrase in an earlier Act by an erroneous assumption of its effect contained in a later Act which did not purport to alter or amend the earlier Act.”[17] (emphasis added)
[11] Ibid 625-626.
[12] Maxwell, Interpretation of Statutes, 6^th ed (1920) page 544.
[13] (1928) AC 143 per Lord Atkinson at 164.
[14] Ibid per Lord Atkinson at 164.
[15] (1921) 2 KB 403 at 414.
[16] (1928) AC 143 at 156.
[17] Port of London Authority v Canvey Island Commissioners (1932) 1 Ch 446 per Lawrence LJ at 493.
The principle was acknowledged by the Full Court of the Federal Court in Allina Pty Ltd v FCT:[18]
“There was some debate before us as to the circumstances in which courts are entitled to examine a later statute to determine whether it throws any light upon the interpretation of an earlier statute. Plainly this course can be taken when the words of the earlier statute are ambiguous, but if the words of the earlier statute are clear, little assistance may be gained from the later statute. Also, care must be exercised to ensure that the words in the later statute have not been inserted to remove possible doubts: see Re MacManaway and Re House of Commons (Clergy Disqualification) Act 1801;[19] Kirkness (Insp of Taxes) v John Hudson & Co Ltd;[20] and Thompson v JT Fossey Pty Ltd (No 1);[21] Pearce & Geddes, Statutory Interpretation in Australia.[22]”
[18] (1991) 99 ALR 295 at 303.
[19] [1951] AC 161 at 177-178.
[20] [1955] AC 696 especially per Viscount Simonds at 712-713.
[21] (1978) 20 ALR 496 per Franki J at 501-502.
[22] 3^rd ed, 1988, par 3.25.
In my view, the interpretation to be placed upon s 15(1) is in the relevant sense sufficiently ambiguous to permit use to be made as an aid to its interpretation, of the terms of the later amendment which finds expression in s 15B.
Even without the assistance afforded by reference to the terms of s 15B, I would have had considerable difficulty in accepting the argument advanced by the appellant.
It would require a much clearer indication in the legislation than is the case with the 1997 amending Act, to accept the argument that the change of language effected by that Act should have such a bizarre consequence that what would otherwise be a non-violent offence committed while retreating from an unlawful assault, the offence having no direct connection with the assailant, should be regarded as falling within the rubric of self-defence.
At all events, the terms in which s 15B were later cast, leave no room for doubt.
In my view, those considerations lead to the conclusion that when s 15(1)(a) refers to “the conduct to which the charge relates”, the conduct must take the form of the application of force in response to the application of force, or the threat of it, by another.
On that construction of the section, the relevant conduct of the appellant in this case could not constitute self-defence.
It follows that there is no ground made out upon which it would be proper to interfere with the conviction.
The cross-appeal must be dismissed.
Appeal Against Sentence
Although ground 2 of the notice of appeal complains that the fine and disqualification for four months is a manifestly inadequate sentence, the sole basis upon which the appeal was argued, was that the sentencing magistrate erred in finding that the offence was trifling within the meaning of s 47(3)(b) of the Road Traffic Act.
Section 47(1) creates the offence of driving a vehicle, or attempting to put a vehicle in motion, while the defendant is “so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle”.
Subsection (3) provides:
“(3)Where a court convicts a person of an offence against subsection (1) in which the vehicle concerned was a motor vehicle, the following provisions apply:
(a) the court must order that the person be disqualified from holding or obtaining a driver’s licence-
(i)in the case of a first offence - for such period, being not less than twelve months as the court thinks fit; or
(ii)in the case of a subsequent offence - for such period, being not less than three years, as the court thinks fit;
(b) the disqualification prescribed by paragraph (a) cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than one month;”
The magistrate delivered separate remarks on penalty, during the course of which he explained the basis upon which he was prepared to find that the offence was trifling. He said:
“6.Jake, I guess that there would be a lot of people who might suggest that it would not be a fair thing for you to lose your licence for 12 months. To use the vernacular they might consider it a bit rough for someone to go out of the courts and not be able to drive for 12 months if they have done what you have done, and drive to get away from violent and aggressive behaviour towards you and your friends. Jake, there are also many, many people who would say any 17 year old with a blood alcohol reading of .171 ought to face the full consequences.
7.Jake, I accept more importantly that but for the approach from Jordan Singh and Justin Smith you would not have driven, that you were confronted with a set of circumstances where they were clearly angry, hostile and most certainly wanting to sort things out with you and very directly. I am prepared to accept that when you appreciated that in your drunken state, you had closed the vehicle off and were trying to prevent it in that way. I rely upon the evidence of Evan Whillas to make the finding that Smith was not going to be easily put off and was making a fair job belting into the side of your car. I am satisfied that the decision was made in a state of high panic to get out of that location to protect yourself, your car and two companions you were with. I certainly consider that but for that approach you would not have driven. Having reversed, getting onto the road, the force resulted in the rear window of your car being smashed, which was a measure of Smith’s intent, bearing in mind that it was broken with his bare hands. Once you started off down the road I don’t think it is a fair situation to assess how far you can go before stopping. I think it is clear that you were in a state of panic. The overall distance you travelled before your car was stopped was estimated, and not challenged, at about 1.5 kilometres.
8.It is important to me that your driving occurred in very quite (sic) circumstances, where there is no embarrassment to other road users and you were not driving in a manner which increases that risk. I am satisfied that as soon as the police vehicle identified themselves, you stopped, and I accept that you were frank and open with the police from that moment on.
9.Jake, I consider I can, and I do, distinguish your circumstances from the matter of Police v Bainbridge on the basis that here you had an immediate, ongoing and pressing situation and I think it is problematic what would have happened if you stayed there. Who knows, Mr Hage might have gone to work with the black eyes he was so worried about.”
Section 47(3)(b) is but one of a number of statutory provisions pursuant to which the courts are empowered to impose a lesser penalty than would otherwise be appropriate, if the court finds the offence in question to be trifling.
A reference to other examples is given by Doyle CJ in his judgment in the decision of the Full Court in Siviour-Ashman v Police.[23] In that case, Doyle CJ expressed the view that the same meaning is to be given to “trifling”, in all of the various statutory contexts in which the expression is used.
[23] (2003) 85 SASR 23 at 27.
In Siviour-Ashman, the offence was driving with the prescribed concentration of alcohol, contrary to s 47A of the Road Traffic Act.
The appellant had consumed a fruit drink which, unknown to her, had been spiked with alcohol.
Although she had been drinking for some time before she consumed the fruit drink, the case was argued on the footing that had it not been for the consumption of the fruit drink, her blood alcohol content would have been less than the prescribed concentration of 0.05 at the time of driving.
The passage of driving in question in that case extended over about ten minutes after she had left the bar at which she had been drinking.
The magistrate’s refusal to classify the offence as trifling was upheld on appeal to a single judge of this Court, whose decision was affirmed by the Full Court.
Given the nature and extent of the actual passage of driving by the appellant, and that her blood alcohol level when tested by the police about 40 minutes after she had been stopped at 4.10 am was 0.120 grams of alcohol in 100 millilitres of blood, it could not be said that the immediate circumstances of the offence were atypical.
Against that background, the attention of the court focused upon the allowance which could be made for the explanation for the offending and the fact that the appellant believed that she had consumed no more than a safe amount of alcohol. As it was put by Doyle CJ:
“[31] Do these circumstances mean that although the offending conduct itself might be regarded as a normal or typical instance of the offence in question, when the circumstances are viewed as a whole the offence is to be regarded as trifling?”
In the course of his decision in Siviour-Ashman, Doyle CJ, with whose reasons Besanko J agreed, noted that the point made in many of the cases is that an offence:
“… which is an normal or typical example of its type will not be trifling. The reason is that Parliament could not have intended that a normal or typical offence would be treated in an exceptional manner.”[24]
[24] Ibid [25].
He went on to observe that if attention was to be confined to the conduct in that case which constituted the offence, it was a typical offence of its type. He stated:
“[26] … The appellant drover he car for some distance on a main road while the prescribed concentration of alcohol was present in her blood. The fact that the appellant’s driving was not apparently adversely affected by the alcohol ifs of no great significance. The offence in question is not concerned with the actual standard of the driving in question. It is concerned, as much as anything, with preventing the danger that can arise when motor vehicles are driven by persons with the prescribed concentration of alcohol in their blood.”
Doyle CJ then referred to a number of cases where the courts have treated the circumstances of the offence as relevant in the context of determining triviality.
He regarded remarks of Brennan J in Walden v Hensler,[25] and the decision in that case, as supporting the view that regard could be had to circumstances extending beyond the offending conduct, which served to explain how it was that the offence was committed.
[25] (1987) 163 CLR 561.

He concluded that the offender’s “reasons for acting or motive or belief can be relevant in deciding if an offence is trifling but … this sort of factor has to be weighed along with the offending conduct”.[26]
[26] Ibid [42].
At the same time, both Doyle CJ and Besanko J held that the principal focus must nonetheless be on the offending conduct, rather than the explanation for it, although the explanation could be taken into account as part of the circumstances of the offending.
The conclusion reached by the majority in Siviour-Ashman, was that the appellant’s state of mind and belief, although they were matters which should be taken into account, could be given only limited significance, and were not sufficient to lead to a conclusion that the offence was trifling.
In the passage from the sentencing magistrate’s reasons for sentence in this case, which I have quoted above, he made reference to the case of Police v Bainbridge.[27]
[27] (Unreported) Martin J, 3 November 2003.
In that case, which concerned a police appeal against a finding by the sentencing magistrate that the offending was trifling, the respondent gave evidence that his intention on leaving the hotel at which he had been drinking, was to leave his car parked in the street and to take a taxi home. He was, however, assaulted in the street, as a result of which he was knocked unconscious.
His next memory was of driving along West Terrace and into Anzac Highway, where he was pulled over by the police.
In the course of his reasons for judgment, Martin J observed:
“The question is whether by reason of the respondent’s condition the offence can properly be described as trifling. All the circumstances must be taken into account. That includes the objective circumstances of the driving. The alcohol level, together with the distance and manner of driving, must be weighed against the respondent’s state of mind and reasons for driving. The respondent drove a considerable distance and his blood alcohol level was high. His speed was approximately 20 km/hr over the speed limit. These are serious objective circumstances. On the other hand the respondent’s though processes were significantly impaired and he was acting in a state of panic.”
Martin J went on to consider the decision in Siviour-Ashman, which he accepted was authority for the proposition that the explanation for the driving is a relevant factor to be considered in determining whether the driving can properly be regarded as trifling. He concluded:
“In the matter under consideration, if the respondent had not been knocked unconscious and, with faculties not impaired by the assault, had in a panic driven to West Terrace and along West Terrace onto Anzac Highway, in my view the respondent would not have made out a case for the offence to be considered as trifling. However, the respondent’s faculties were not unimpaired. I am satisfied that they were significantly impaired. While it is unknown how long the respondent was unconscious, given the impairment and the respondent’s general state of mind, I am satisfied that the explanation removes any element of intention or defiance of the law and that the offending in all the circumstances is not typical.
It is a borderline case, even making full allowance for the respondent’s injury and mental state. In all the circumstances, I am satisfied that the offence was trifling. It is appropriate to exercise the power contained in s 47B(3)(b).”
Applying the relevant principles as they were explained in Siviour-Ashman to the circumstances of this case, I think that it is, as Martin J considered was the case in Bainbridge, a borderline case.
If attention was to be limited to the immediate circumstances of the offending, one would have to conclude that it was a typical offence of its kind.
But the offending conduct and the surrounding circumstances must be viewed as a whole in determining whether the offence is trifling. Given the magistrate’s acceptance of the evidence of the respondent and his witnesses, there was a cogent explanation for the offending. Consistently with the approach identified in Siviour-Ashman, allowance may be made for this.
As this is an appeal by the prosecution against sentence, I have considered the question of onus.
It was made clear in Police v Cadd and Ors[28] that the restrictions upon prosecution appeals, which find expression in the decision of the High Court in Everett v The Queen,[29] apply to appeals against sentence by the prosecution under the Magistrates Court Act 1991, but only in the case of custodial sentences.[30] In other cases, the ordinary principles which apply to appeals against the exercise of a sentencing discretion apply. That was the view taken by Bleby J in Hemming v Droulias.[31]
[28] (1997) 69 SASR 150.
[29] (1994) 181 CLR 295.
[30] Ibid per Doyle CJ at 159.
[31] (2000) 206 LSJS 389 at 392.
It follows that it is for the appellant to establish that the sentencing discretion exercised by the magistrate in this case miscarried, in the sense that the magistrate acted on a wrong principle, or took into account extraneous or irrelevant matters, or made an error of fact, or failed in some other way to take into account a material consideration.
In my view, although as I have said, I regard the case as borderline, I am not satisfied that the appellant has discharged that onus.
I would dismiss the appeal.
I so order.