Quartermaine v Marsh
[2006] WASC 303
•21 DECEMBER 2006
QUARTERMAINE -v- MARSH [2006] WASC 303
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 303 | |
| 20/12/2006 | |||
| Case No: | SJA:1036/2006 | 19 DECEMBER 2006 | |
| Coram: | MILLER J | 18/12/06 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed No order as to costs | ||
| B | |||
| PDF Version |
| Parties: | LARRY PHILLIP QUARTERMAINE DANIEL ROSS MARSH |
Catchwords: | Criminal law Appeal against conviction Assault occasioning bodily harm Being armed with a dangerous and offensive weapon likely to cause fear Fight between two families outside appellant's residence Applicability of various defences Criminal Code s 25, s 31(3), s 244(1)(c), s 246, s 247, s 248, s 250, s 254(2) Whether Magistrate correct in finding prosecution had negatived all defences |
Legislation: | Criminal Code (WA), s 25, s 31(3), s 222, s 244(1)(c), s 246, s 247, s 248, s 250, s 254 |
Case References: | Nil Banks v Properjohn, unreported; FCt SCt of WA; Library No 920033; 17 February 1992 BG V The State of Western Australia (2005) 152 A Crim R 207 Denton v Bodycoat [2000] WASCA 424 M v The Queen (1994) 181 CLR 487 Taikato v The Queen (1996) 186 CLR 454 Watt v Thomas (1947) AC 484 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
DANIEL ROSS MARSH
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE S RICHARDSON
File No : CA 972 of 2005, CA 973 of 2005
Catchwords:
Criminal law - Appeal against conviction - Assault occasioning bodily harm - Being armed with a dangerous and offensive weapon likely to cause fear - Fight between two families outside appellant's residence - Applicability of various defences - Criminal Code s 25, s 31(3), s 244(1)(c), s 246, s 247, s 248, s 250,
(Page 2)
s 254(2) - Whether Magistrate correct in finding prosecution had negatived all defences
Legislation:
Criminal Code (WA), s 25, s 31(3), s 222, s 244(1)(c), s 246, s 247, s 248, s 250, s 254
Result:
Appeal dismissed
No order as to costs
Category: B
Representation:
Counsel:
Appellant : Mr P G Giudice
Respondent : Ms J Andretich
Solicitors:
Appellant : George Giudice
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Banks v Properjohn, unreported; FCt SCt of WA; Library No 920033; 17 February 1992
BG V The State of Western Australia (2005) 152 A Crim R 207
Denton v Bodycoat [2000] WASCA 424
M v The Queen (1994) 181 CLR 487
Taikato v The Queen (1996) 186 CLR 454
Watt v Thomas (1947) AC 484
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1 MILLER J: This is an appeal against conviction arising out of the conviction by the appellant on 3 April 2006 in the Magistrates' Court at Carnarvon of the offences of assault occasioning bodily harm and being armed with a dangerous and offensive weapon likely to cause fear. In relation to the conviction of the appellant for these offences, he was fined the sum of $2400 and $600 respectively, with costs of $100.70 in relation to both matters.
2 The appellant initially appealed against both conviction and sentence, but on the day before the hearing advised counsel for the respondent that the appeal against sentence would be abandoned. It was abandoned at the hearing of the appeal.
3 The grounds of appeal in relation to which leave to appeal was granted are two in number, but only the first is now relevant. It is particularised into a number of paragraphs and subparagraphs. In essence, the ground contends that the learned Magistrate erred in fact and in law in relation to her conclusions about the circumstances in which the offences were committed and in her conclusions in relation to the credibility of witnesses.
4 To understand the appeal against conviction, it is necessary to set out the background facts of the case. The events occurred on 9 January 2005 at 3 Killicoat Street, Carnarvon, which was the home of the appellant. The complainant, Robert Michael Brown, who was 56 years of age, arrived at the address of the appellant at about 4 pm on the day in question. He was accompanied by seven others, two of whom were his sons (Shane and Wade Brown), one his daughter (Roberta Brown) and one his de facto (Christine Ryan). Four vehicles brought this group (whom I shall refer to as "the Brown group") to the address. They arrived for the specific purpose of "a fight".
5 The complainant admitted to having got out of his motor vehicle and having called out to the appellant from the verge of the appellant's house, asking him to get out of the house and to "fight fair out here". According to the complainant, the appellant did emerge from the front of his house holding a meat cleaver in his house. The complainant's evidence was that the appellant came towards him saying "I'll kill you, you bastard", holding the meat cleaver above his head. The complainant ran to his vehicle and got what was referred to as an "iron standard", because (he said) he feared for his life. He said that the appellant swung the meat cleaver at the iron standard and in doing so hit his finger. At the time, he claimed to be holding the standard above his head to defend himself. The conclusion
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- reached by the learned Magistrate was that it was not the meat cleaver which had hit the complainant's finger. The complainant did suffer a dislocated finger, but in consequence of the standard being jerked from him by the appellant. The complainant said that this incident occurred on the roadway outside the appellant's residence. The iron standard was knocked out of his hands and following this, the appellant threw down his cleaver, picked up the standard and took it towards Shane Brown.
6 The appellant's account of what occurred can be drawn from a video record of interview conducted with investigating police and also from his own testimony at the hearing. He said that he had been to Shane Brown's house at about 2 pm on the afternoon of 9 January 2005 for the purpose of telling him not to come to his (the appellant's) place. He had returned home and was in his backyard at about 4.30 pm when the Brown group arrived. Although he did not hear them arrive, he had walked around the side of his house to the front yard and observed people fighting. He noted in particular Wade Brown running around with a hockey stick. Robert Brown was telling Wade Brown to use it and to hit the appellant.
7 The appellant said that he went to his front door, got his meat cleaver and emerged. He saw the complainant pick up an iron standard after he came out with the meat cleaver and he went to him. He claimed to have got the meat cleaver because he did not want to get a hiding. He admitted to walking up to the complainant and taking a swing at him with the cleaver and then wrestling the standard from him. This led the complainant to run to the back of his vehicle.
8 There was a distinction between what the appellant said in his video record of interview and what he said in his testimony about whether or not he had hit the standard with the cleaver, but otherwise his evidence was basically consistent with what he had said to investigating police.
9 It is significant to note that the appellant conceded in his evidence that the only person who actually stepped onto his property was Christine Ryan. All others were on the verge.
10 The appellant contended that, because Robert Brown was telling Wade Brown to hit the appellant with the hockey stick, he felt threatened. However, it was towards the complainant that the appellant went with the cleaver and after swinging at the appellant with it, he threw the cleaver to the ground and grabbed the iron standard from the complainant, thus occasioning him the finger injury he suffered. He was adamant in
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- evidence that he had not hit the standard with the cleaver, nor had he hit the complainant's finger with the cleaver.
The learned Magistrate's reasons
11 The learned Magistrate weighed up the evidence of all witnesses and concluded that the Brown group had turned up "in a mob" to the appellant's house on 9 January 2006 for the purpose of a fight, including an intended fight between Robert Brown and the appellant. Wade Brown had arrived with the hockey stick as a weapon and Christine Ryan had come with a piece of wood. These people said that they had arrived with weapons to "be prepared". The conclusion of the learned Magistrate was that when the Brown group arrived at Killicoat Street, the appellant was in his backyard and it was shortly afterwards that he walked to the front and saw fighting on the roadway.
12 The learned Magistrate concluded that the appellant became angry about what he saw and went into his house, got a meat cleaver and came back to the front yard, where he threatened to kill the complainant and headed quickly towards him with the cleaver raised above his shoulder. At all relevant times, the complainant was off the appellant's property. He grabbed the iron standard from his vehicle and "fronted the appellant", holding it up parallel to the roadway.
13 The learned Magistrate found that the appellant took a swinging action at the complainant which hit the standard, but which did not hit his finger. She concluded that the appellant then dropped the cleaver and continued with the assault by jerking the standard away from the complainant and dislocating his finger in the process. She made the observation that the appellant had "taken the law into his own hands" in doing what he did.
14 The learned Magistrate conceded that the Brown group had turned up in large numbers for the purpose of a fight, but also concluded that the appellant "was not prepared to swallow his pride and walk away from the fight and call the police to allow the matter to be dealt with lawfully. Rather, in the context of one family against another, he was going to show who was the stronger".
15 The learned Magistrate thus concluded that the appellant assaulted the complainant and during the assault, whilst jerking the standard from the appellant, had hurt his finger. At the time of that assault, the complainant was not on the appellant's property and at no time did he go onto the property during the incident.
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16 The learned Magistrate then dealt with the range of defences which had been raised on behalf of the appellant. The first of these was the defence provided under s 31(3) of the Criminal Code (WA), namely, that a person is not criminally responsible for an act if he does the act under circumstances when it is reasonably necessary in order to resist actual, but unlawful, violence threatened to him or to another person in his presence. The learned Magistrate correctly appreciated that it was critical that there be evidence to raise this defence in the form of a reasonable apprehension of imminent attack or danger. She concluded that at the time the appellant came to the front of the house, his son was in a "one on one" fight with Shane Brown on the roadway and the complainant was on the verge, but had not stepped a foot onto the appellant's property. Wade Brown was also on the roadway holding a hockey stick. Christine Ryan was the only person in the yard and this was of no concern to the appellant. In the light of these circumstances, the learned Magistrate did not consider that it was reasonably necessary for the appellant to obtain a meat cleaver in order to resist any "actual and unlawful violence threatened to him or to another person in his presence" by the complainant. As she stressed, the complainant was not on the appellant's property and was not threatening to come onto it. The appellant could have resisted any threatened violence from the complainant (had there been any) by remaining on his property and away from the scene. She concluded that he could have called police to deal with any threat that existed. She also concluded that insofar as the appellant's son was fighting, he was already in a fight and two others were there present to support him. It was thus not necessary for the appellant to carry a meat cleaver to protect his son, Tommy.
17 The learned Magistrate then dealt with the question of self-defence. She concluded that no defence of self-defence arose because the appellant had not been unlawfully assaulted by either the complainant or anybody else. Section 248 of the Criminal Code requires for the defence to be raised that a person be unlawfully assaulted, without having provoked that assault, in which circumstances it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault. However, the learned Magistrate's conclusion was that no unlawful assault had been occasioned towards the appellant by the complainant or anybody else. So far as Christine Ryan was concerned, the learned Magistrate's conclusion was that although she had a piece of wood and said she would like to hit the appellant on the head with it, she did not do so and she was not taken seriously by the appellant. The learned Magistrate pointed out that the complainant had only armed himself after the appellant had obtained the meat cleaver.
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18 The learned Magistrate also considered the question of aiding in self-defence, a defence which is created by s 250 of the Criminal Code. It provides that in any case in which it is lawful for any person to use force of any degree for the purpose of defending himself against an assault, it is lawful for any other person acting in good faith in his aid to use a like degree of force for the purpose of defending such first-mentioned person. In this respect, the learned Magistrate concluded that the appellant was not acting in defence of his son Tommy when he assaulted the complainant.
19 The learned Magistrate then considered the defence created by s 254 of the Criminal Code, namely, defence of property against trespassers. Pursuant to s254(2), it is lawful for a person in peaceable possession of any place (the appellant) to use such force as is reasonably necessary to prevent a person from wrongfully entering the place, to remove a person who wrongfully remains on or in the place, or to remove a person behaving in a disorderly manner on or in the place. The learned Magistrate's conclusion was that the only person who had set foot on the appellant's property was Christine Ryan and not only did she not assault the appellant, but on his own admission he was not concerned about her.
20 While not specifically saying so, it is clear that the learned Magistrate, by her earlier references to the complainant's position on the roadway, concluded that there was no question of the complainant attempting to wrongfully enter the appellant's property and certainly at no time did he step onto the property or behave in a disorderly manner on it.
21 Although the learned Magistrate did not deal with it, counsel for the appellant had raised at trial a defence under s 244(1)(c) of the Criminal Code. This section is commonly termed "defence against home invasion" and it provides that it is lawful for an occupant of a property to use force, or do anything the occupant believes on reasonable grounds to be necessary to make effectual defence against violence used or threatened in relation to a person by a home invader who is either attempting to wrongfully enter the dwelling, or an associated place, or wrongfully in the dwelling, or on or in an associated place.
22 An "associated place" is defined in s 244(1)(c) to mean any place that is used exclusively in connection with or for purposes ancillary to the occupation of the dwelling and if the dwelling is one of two or more dwellings, a place that is in use in common.
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23 Counsel for the appellant began to argue that the presence of the complainant and his group on the verge of the appellant's property meant they were on an associated place, but he eventually abandoned that line of argument, and properly so. The verge could not be said to be a place used exclusively in connection with or for purposes ancillary to the occupation of the dwelling.
24 Another section which was raised at the hearing before the learned Magistrate and apparently not dealt with by her was s 247 of the Criminal Code. That is the provision which makes it lawful for any person to use such force as is reasonably necessary to prevent the repetition of an act or insult of such a nature as to be provocation to him for an assault.
25 Counsel for the appellant attempted, at the hearing of the appeal, to suggest that the appellant had lawfully used his meat cleaver to prevent the repetition of an act or insult, but he found it difficult to identify what was the act or insult which was likely to be repeated. In any event, the incident had to be of such a nature as to be provocation to the appellant for an assault.
26 On the facts of the case, all that appears to have happened is that the Brown group arrived at the appellant's property challenging him to a fight. They were not insulting him and they were not doing anything of such as nature as to be provocation to him for an assault. It was not necessary that he take the action he did to get them to leave the verge or roadway outside his property. As the learned Magistrate made clear, he had ample opportunity to telephone the police. This is underlined by the fact that in his cross-examination it was put to him by the prosecutor that he had a mobile telephone in his pocket when he came around from the back of the house and could have utilised that to telephone the police for assistance.
27 The learned Magistrate also turned her attention to the question of provocation. The defence of provocation in relation to the offence of assault is created by s 246 of the Criminal Code. A person is not criminally responsible for an assault committed upon another who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self-control and acts upon it on the sudden and before there is time for his passion to cool. The learned Magistrate's conclusion was that the appellant was not provoked into the assault upon the complainant in any way. She concluded that he did not lose his power of self-control, but, to the contrary, acted in full control of his senses. She held that he was angry about the situation, but not out of control.
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28 Finally, the learned Magistrate turned to the question of extraordinary emergency within the meaning of s 25 of the Criminal Code. That section provides that a person is not criminally responsible for an act done under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise. In this respect, the learned Magistrate concluded that the appellant was not responding to any emergency when he went to get the meat cleaver and assaulted the complainant. Rather, he was retaliating towards the Brown group ("the mob") who he had told to stay away from his house.
29 The learned Magistrate convicted the appellant of both offences. She specifically found that the appellant had, on his own admission, taken up the meat cleaver in order to frighten the Brown mob away from his house and in so doing he was not justified in his action. He had assaulted and harmed the complainant and any defences which he had raised had been negatived beyond reasonable doubt by the prosecution.
Grounds of appeal
30 There is one ground of appeal and it is that the learned Magistrate made an error in fact and law, resulting in a miscarriage of justice. The first particular contends that the learned Magistrate was wrong in concluding that the possession and swinging of the meat cleaver was not justified for four reasons:
(i) the complainant and members of his family and friends had attended at the appellant's house with weapons for revenge against the appellant and his son;
(ii) when the appellant swung the meat cleaver, the complainant had a steel star picket in his hands in proximity of the appellant's son;
(iii) the complainant's family and friends far out-numbered the appellant, his son and two friends; and
(iv) the complainant's son was armed with a hockey stick immediately before the appellant took up the meat cleaver.
- These grounds can be dealt with together.
31 I have already pointed out that the learned Magistrate came to the conclusion that the appellant was not personally threatened by anybody who was on his property other than Christine Ryan, of whom he took little or no notice. The learned Magistrate concluded that the appellant had
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- deliberately gone into his house to get a meat cleaver to come out and deal with the complainant and those who were present. In so doing, she considered that he inflamed the situation and took the law into his own hands.
32 It is true, of course, that the Brown group came to the appellant's house and had weapons, and they were there for the purpose of a fight. This did not, however, necessitate the appellant taking up a meat cleaver and emerging from the property as he did.
33 The circumstances in which the complainant took up the iron standard have been referred to. He did not take it up to attack the appellant, but took it in defence of himself when the appellant approached him with the meat cleaver. It is incorrect, as contended in the ground of appeal, that the complainant had the iron standard in his hands for any purpose related to the appellant's son. It is true that the Brown group out-numbered the appellant, his son and friends, but that, of itself, did not mean that the appellant was driven to get a meat cleaver and come out to confront the complainant. As the learned Magistrate pointed out, there was no reason why he could not have immediately telephoned the police for assistance. In any event, nobody was in immediate danger of anything other than engagement in a fight. As the learned Magistrate pointed out, it was appalling that such behaviour should have taken place on a Sunday afternoon in a neighbourhood in Carnarvon, but that fact, of itself, did not justify the appellant in picking up a meat cleaver and acting as he did.
34 The fact that the complainant's son had a hockey stick in his hands did not justify the appellant going into the house to take up the meat cleaver. The hockey stick was never aimed at the appellant, and at no stage did he say that he was threatened with it. The conclusion of the learned Magistrate that the appellant simply became angry about what he saw and went to get the meat cleaver to deal with the problem is, in my view, an entirely justifiable conclusion for her to have reached.
35 Paragraph (b) of the first ground of appeal contends that the learned Magistrate erred in finding that, after dropping the meat cleaver to the ground, the wrestling of the iron standard from the complainant was a continuation of the assault. Various particulars are given. They are:
(i) the appellant was at the time unarmed;
(ii) the complainant and others had invaded the appellant's property with the intention of revenge whilst armed with, inter alia, the hockey stick;
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- (iii) the complainant and family and friends were extremely angry; and
(iv) the appellant had demanded the complainant and company leave the area.
36 It is apparent from the evidence accepted by the learned Magistrate that the appellant went towards the complainant with the meat cleaver in his hands. It was the complainant who then got the iron standard from his vehicle to defend himself from the approach of the appellant with the meat cleaver. The passage complained of is as follows:
"The accused then dropped the cleaver and continued the assault by jerking the standard off Robert Brown."
37 An assault is defined in s 222 of the Criminal Code in the following way:
"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 who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent ... is said to assault that other person ..."
38 It seems clear to me from the learned Magistrate's conclusion that she considered the appellant's actions in his approach to the complainant to constitute one continuing assault. That is, he approached him with the meat cleaver and thus by bodily act, at least, threatened to apply force towards him, he then hit the iron standard which the complainant was holding which was an application of force by bodily act to the person of the complainant, and then threw down the meat cleaver and wrestled the iron standard from the complainant, injuring his finger. This was a continuation of the application of force to the complainant (without his consent) and, in my view, constituted one assault, as the learned Magistrate rightly concluded.
39 At the hearing of the appeal, counsel for the appellant contended that the learned Magistrate was in error in reaching the conclusion that the meat cleaver actually hit the standard when held by the complainant. This was not a particular ground of appeal, but I allowed counsel for the appellant to advance it. The essential submission was that the learned Magistrate had rejected the complainant's testimony to the effect that he had been hit on the finger with the meat cleaver and instead had concluded (without justification) that the meat cleaver actually hit the iron
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- standard, not his finger. The point made was that this was not the evidence of the complainant. Nor was it the evidence of the appellant, who contended that he had thrown the meat cleaver down and then wrestled the iron standard from the complainant, thus dislocating his finger in the process. Attention was drawn to the fact that the learned Magistrate had incorrectly stated that in his video record of interview the appellant had admitted that the meat cleaver had struck the standard, but in his evidence before the Court he had (inconsistently) contended that the meat cleaver and the iron standard definitely did not meet.
40 Recourse to the transcript where the relevant passages of the video record of interview was reproduced reveals that the appellant did not accept that he had hit the standard with the meat cleaver. At one point, he said he could not recall hitting it, but "then again I might have". Apart from that qualified admission, he was insistent that he had not "hit him". It is to be noted that the question put in the video record of interview was whether the appellant had actually hit the complainant, not whether he hit the standard.
41 When the appellant gave evidence, he said that he had raised the meat cleaver towards the complainant, but had then thrown it down. The passage is as follows:
"Yeah. What did you do?---I . . . (indistinct) . . . to there. I'm walking towards him. Shane - - Wade's over there. Robert's telling him to hit me. I've raised the meat cleaver like this. I went like that. Robert's put the standard up. I've grabbed it, chucked the meat cleaver down - - grabbed the standard and wrenched it off him."
42 The complaint of the appellant at the hearing of the appeal was that it had never been put to the appellant that he had actually hit the iron standard with the meat cleaver and that the learned Magistrate erred in reaching that conclusion.
43 However, it seems to me that the learned Magistrate was entitled to reach a conclusion on the totality of the evidence before her as to what had happened. The complainant had said that the appellant came at him with the meat cleaver and he raised the iron standard in self-defence, at which time he was struck on the hand with it. He said that the iron standard had been knocked from his hand in this incident. The learned Magistrate accepted portion of what the complainant said; namely, that the appellant had come at him with the meat cleaver and he had taken the
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- iron standard and held it up in defence, but she concluded that he had not been hit on the hand. Rather, she concluded that the meat cleaver must have hit the iron standard. She then concluded that the appellant had wrestled the iron standard from the complainant, not that it had been knocked from the complainant's hands. This conclusion relied, in part, upon what the appellant himself said. He accepted that he had approached the complainant with the meat cleaver, but claimed that he had thrown it down and then wrestled the iron standard from the complainant.
44 I can see no reason why the learned Magistrate erred in accepting part of what the complainant said and part of what the appellant said in concluding what actually happened. She was entitled to accept part of what each said and reject other parts. She was not bound to accept the totality of the evidence of either. Nor was she bound to reject the totality of the evidence of either.
45 As I pointed out to counsel for the appellant at the hearing of the appeal, it is apparent that the appellant's act in approaching the complainant with the raised meat cleaver was an assault. That assault continued in the sense that the meat cleaver was used to strike the standard which was being held in self-defence and then the standard was wrestled from the complainant. All of this constituted one incident and it was all one assault. The conclusion which the learned Magistrate reached as to exactly how it happened was clearly open to her on the evidence.
46 To the extent that the ground complains that the appellant was unarmed, it seeks to isolate from the facts something which is far from the reality of the situation. The appellant was only unarmed when he threw down the meat cleaver and grabbed the iron standard. It was all part of the one act.
47 The assertion that the complainant and others have "invaded" the appellant's property is incorrect. Only one person had stepped onto the property and that was Ms Ryan, to whom I have made reference.
48 The fact that the complainant and his family and friends may have been extremely angry does not appear to me to go to the essence of any aspect of the case.
49 The contention that the appellant had demanded that the complainant and others in his group leave the area was not a finding made by the learned Magistrate, save for her reference to the appellant's evidence that he had said to the complainant, "I'll kill you, you bastard", and "Fuck off my property" before heading directly towards the complainant with the
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- cleaver raised above his shoulder. Again, it is unrealistic to suggest that this was a directive to "leave the area".
50 Paragraph (c) asserts that the conclusion that the appellant could have dealt with the attack by calling the police was an error in law and in fact. In my view, it was clearly open to the learned Magistrate to have reached that conclusion. The appellant went into the house. He was not presently threatened. He had every opportunity to call the police had he wished.
51 Paragraph (d) contests the conclusion that the appellant "took the law into his own hands", rather than defending himself, his family and property, acting in self-defence and as a result of provocation. I have already dealt with these matters.
52 Paragraph (e) asserts that the learned Magistrate erred in finding against the appellant, despite largely accepting what he said and finding he was consistent in his evidence with the video record of interview and also finding that the complainant and other prosecution witnesses were impressive.
53 It is true that the learned Magistrate expressed reservations about the evidence of the complainant. She described him as "a fairly unimpressive witness" overall and described him as argumentative. Further, much of his evidence shifted in content. Nevertheless, the learned Magistrate decided the case on the totality of the evidence, not just the evidence of the complainant. Her ultimate conclusion on the facts was based upon the credibility of all witnesses and an assessment of the evidence as a whole. The conclusion reached by the learned Magistrate that the appellant was guilty of the offences alleged was largely based upon what he himself said about the circumstances in which he had taken hold of the meat cleaver and emerged from the house in the way in which he did. It is thus pointless for the appellant to argue that because the learned Magistrate had reservations about the complainant (and, indeed, any of the other prosecution witnesses), she should not have found against the appellant.
54 Paragraph (f) contends that the learned Magistrate erred in concluding that the appellant had caused bodily harm to the complainant when she had concluded that the complainant's finger was injured when the star picket was wrested from him. I have already dealt with this aspect of the case by pointing out that there was one assault by the appellant which consisted of the attack with the meat cleaver, the striking of the
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- iron standard with that cleave and then the wresting of the iron standard from the hands of the complainant.
55 Although the grounds of appeal did not nominate or specify particular sections of the Criminal Code as providing defences, counsel for the appellant in his argument on the hearing of the appeal incorporated s 244(1)(c) and s 247 of the Criminal Code as being defences with which the learned Magistrate should have dealt, but which she failed to consider. I have already mentioned these two defences in the context of the learned Magistrate's reasons, and, in my view, it cannot be suggested that they provided any defence for the appellant. To the extent that they were raised, either at the hearing before the learned Magistrate or in the course of the appeal, it is apparent for the reasons that I have given that they were negatived.
56 In all the circumstances, I am unable to conclude that any of the grounds relied upon by the appellant have been made out.
57 The overall contention that there was a miscarriage of justice by reason of errors of fact and law cannot be maintained. To the contrary, it seems to me that there was ample evidence on which the learned Magistrate could have concluded that the appellant on the day in question took the law into his own hands and in so doing assaulted the complainant. An analysis of the evidence reveals that, on his own admission, he was in the backyard of his house when the Brown group arrived at the front of the house. The Brown group was not on his property, save for one woman of whom he took little or no notice. There was a fight raging on the roadway itself outside the property. The appellant having seen it went into his house and got a meat cleaver, and emerged with it. He went to the location of the fight, which was off his property. He raised the meat cleaver above his head and went towards the complainant. In so doing, he assaulted the complainant. The complainant went to his vehicle and grabbed an iron standard. This he held up in self-defence of himself. The appellant hit the iron standard with the meat cleaver, thus continuing the assault. The meat cleaver was then thrown down and the iron standard wrested from the complainant's hands. The assault was continued in the appellant so doing. In consequence of the iron standard being wrested from the hands of the complainant, the complainant suffered an injury. It constituted bodily harm.
58 The various defences raised had no foundation in the evidence. Each one was negatived in the way in which I have described. The conviction
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- was the appellant was thus entirely open in all the circumstances of the case. I would dismiss the appeal.
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