R v Lowe - [2020] SADC 92

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v LOWE
Criminal Trial by Judge Alone
[2020] SADC 92
Reasons for the Verdict of His Honour Judge Soulio
16 July 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY
Trial by judge alone - accused charged with one count of recklessly causing serious harm - accused punched complainant to the face causing complainant to fall - self-defence raised - prosecution unable to exclude self-defence beyond reasonable doubt
Verdict - not guilty
Criminal Law Consolidation Act 1935 (SA) ss 15, 23; Evidence Act 1929 (SA) s 13BA; Juries Act 1927 (SA) s 7, referred to.
R v Gardi [2015] SASC 186; Morgan v Colman (1981) 27 SASR 334, considered.

R v LOWE
[2020] SADC 92
Introduction

The complainant, Mr E, is the stepfather of a young girl, FE. The accused is F’s father. A Family Court order permitted the accused to have access visits with F after school on alternate Wednesdays and Fridays, and during the day on alternate Saturdays. The weekday access visits were arranged to take place at F’s primary school located in the southern suburbs of Adelaide.
On Friday 17 August 2018, a scheduled access visit day, the complainant attended at the school to collect F, and his biological son WE. It was the arrangement that the complainant, or his wife, F’s mother, would be present while the access visit took place at school.
The accused arrived a little late. The complainant was walking with F and W, back to the complainant’s car. The accused approached them. It is common ground that there was a discussion between the accused and the complainant about changing the accused’s access visit with F from Saturday, to Sunday.
It is common ground that the accused punched the complainant once to the face causing him to fall. The complainant has no memory of the assault. Other witnesses including the two children, and two women, the mothers of other students who were present, did not see the blow.
Following the incident the accused drove to the Christies Beach Police Station and provided a statement about the incident.[1]
[1] That statement did not form part of the evidence.
The accused was interviewed by police some nine days later on 26 August 2018. He admitted striking the complainant. He said the complainant was being aggressive. He said the complainant went to strike the accused, so he struck the complainant once in self-defence.
It is common ground that as a result of the assault, the complainant’s jaw was fractured in two places, and surgery was required for internal fixation of the fractures. The complainant was left with residual disabilities including decreased jaw movement, impaired muscle movement to the right forehead and eyelid, and a large scar.
It is common ground that the prosecution has the onus of establishing, beyond reasonable doubt, that the accused did not act in self-defence, or that his actions were disproportionate to the threat he faced.
I find the accused not guilty, on the basis that I cannot be satisfied beyond reasonable doubt that he did not act in self-defence, nor that his actions were disproportionate to the threat he perceived. I set out my reasons for verdict.
The Charge
Statement of Offence
Recklessly Causing Serious Harm. (Section 23(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Steven Kenneth Lowe on the 17^th day of August 2018 at Seaford Rise, caused serious harm to [DE], being reckless as to whether serious harm was caused.
The accused elected to be tried by a judge sitting alone without a jury.[2]
[2] Juries Act 1927 (SA) s 7(1)(a).
General Directions
General Legal Directions
The general directions were conveniently summarised by Lovell J in R v Gardi as follows:[3]
·As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
·The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.
·The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
·The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
·I must determine whether (each of) the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
·If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
·I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense and experience in assessing the evidence.
[3] R v Gardi [2015] SASC 186 at [9]-[15].
Elements of the Offence
Section 23(3) CLCA provides:
1)A person who causes serious harm to another, intending to cause serious harm, is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 20 years;
(b)     for an aggravated offence—imprisonment for 25 years.
(2)If, however, the victim in a particular case suffers such serious harm that a penalty exceeding the maximum prescribed in subsection (1) is warranted, the court may, on application by the Director of Public Prosecutions, impose a penalty exceeding the prescribed maximum.
(3)A person who causes serious harm to another, and is reckless in doing so, is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 15 years;
(b)     for an aggravated offence—imprisonment for 19 years.
Recklessly Causing Serious Harm
As I have said, the accused is charged with the offence of recklessly causing serious harm. I bear in mind that in order to establish the charge the prosecution is required to prove each of four separate ingredients, proved beyond reasonable doubt. The first ingredient is that the accused caused serious harm to the complainant. Here, it is common ground that this ingredient is made out.
The second ingredient is that the act causing serious harm was a conscious act and was deliberate as opposed to accidental. Again, it is common ground that the punch which caused the harm was a deliberate act.
The third ingredient is that the accused must have acted unlawfully. If the prosecution does not negative a defence of self-defence it will not be established beyond reasonable doubt that the accused acted unlawfully.
The fourth ingredient is that at the time the accused inflicted serious harm to the complainant he was reckless in doing so, that is, that he was aware that there was a substantial risk that his conduct could result in serious harm, and engaged in that conduct despite the risk and without adequate justification.
The real issue joined between the parties related to the issue of self-defence. I bear in mind that in some cases it is lawful to use force against another person, for example force used in self-defence. A person subjected to, or genuinely fearing an attack, may use force to defend himself. He is entitled to do what is reasonably necessary for the purpose of self-defence.
I bear in mind that ‘defence’ means defence. A person who claims to have been acting in justified self-defence must have acted and believed himself to have been acting in defence. Self-defence cannot be used to justify retaliation or revenge if the danger is over, and the occasion for self-defence is at an end.
I also bear in mind that 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.
I bear in mind that the onus remains on the prosecution to prove beyond reasonable doubt that the accused’s actions were not in self-defence, and must exclude self-defence in order to prove that the accused’s conduct was unlawful.
I bear in mind that self-defence is a complete defence to the charge if the accused genuinely believed that the force he used was necessary and reasonable in his own defence, and if that conduct was, in the circumstances as the accused genuinely saw them, reasonably proportionate to the threat which he believed he faced.
I bear in mind that the concept of reasonable proportionality does not imply that the force used by a person under attack cannot exceed that used or threatened against him and that the question is what was reasonable in the circumstances.
Course of Trial
Mr E gave evidence, as did a Ms M and a Ms C, who were parents at the school. They were walking behind the accused and the complainant, although, as I have said, they did not see the blow or the events immediately prior to the blow. The audio-visual recording of the statements by the two children, F and W, were admitted into evidence pursuant to s 13BA Evidence Act 1929. There was no application to cross-examine them. The recorded interview of the accused, following his arrest, was admitted into evidence. Two schedules of agreed facts were admitted into evidence, and to which I will refer as necessary.
The accused did not give evidence as was his right. I bear in mind an accused person is entitled to refrain from giving evidence, and that no inference adverse to the accused is to be drawn from the exercise of that right.
The Evidence
The Complainant
Mr E gave evidence that he was the father of a son, W, aged nine at the time of trial, and the stepfather of a daughter, F, aged seven at trial. The children lived with him and his wife.[4] Pursuant to a Family Court Order, as at the date of the charged incident, F saw the accused, her biological father, on the afternoons of every second Wednesday and Friday, and from between about 10am and 7pm at the accused’s house every second Saturday.[5] The weekday contact involved the accused attending at F’s school and spending time there. The complainant attended at school on those occasions. F generally played in the playground and the accused would engage in conversation with her in that context.[6]
[4]    T 19.
[5]    T 20.
[6]    T 20.
On Friday 17 August 2018 the complainant arrived at the school just before 3pm. That was a day when the accused was to attend and have a scheduled contact visit with F. The complainant collected his son and F. He did not see the accused. He continued towards his car intending to travel home. F was holding his left hand,[7] and his son W was a little behind him.[8]
[7] T 23 L 1.
[8] T 22 L 29.
The complainant saw the accused approach. They exchanged what I understand to have been cursory greetings. The complainant agreed that he knew that it was the accused’s afternoon to spend time with F.[9] He said that the accused did not spend time with F, as the complainant did not think the accused was present, and when he went past the playground and out of the school gates, he continued walking towards his car until he saw the accused.[10] The complainant conceded that he did not intend to allow the accused to spend time with F. He said that he had plans to go home, or to go to the shop, but had plans to do something.[11] The complainant agreed that as at the date of the incident, he did not like the accused.
[9] T 23 L 30.
[10] T 23 L 27.
[11] T 24 L 1.
The complainant said that when he saw the accused he continued walking towards his own car and that the accused walked with him. He said that the accused was on his right side. The accused said that he had not seen his daughter much lately. The complainant said that the accused appeared upset. He was asked what was the manner in which the accused spoke, and reiterated that the accused was upset but that was all he could really say.[12] He and the accused then started speaking about the planned visit on the following day, a Saturday. The complainant said that the complainant’s niece was having a birthday party on Saturday, which F wished to attend, and so the contact day should be changed to the Sunday. The complainant said the accused was not too happy about that.[13] He said that he was still walking towards the car with F on his left arm. He had her bag on his right shoulder. He said the next thing he remembered was waking up, on his knees, with blood coming from his mouth.[14] He then said he had a memory of sitting in the back of a ute, but thought that might be a memory from another time, and then had “a glimpse” of being in an ambulance, and then woke up in hospital.[15]
Cross-examination
[12] T 24.
[13] T 25 L 5.
[14] T 25 L 20.
[15] T 26 L 1.
The complainant agreed that prior to the charged incident the relationship between he and the accused was civil. He agreed that the accused, on the day of the incident seemed fine, and was behaving as he normally did. There had not been any aggravation between him and the accused previously.[16]
[16] T 28 L 9.
The complainant agreed that from time to time arrangements would be changed because of various commitments that each of them had. He agreed that the accused was generally flexible in terms of such arrangements.[17] The complainant agreed that his recollection of events of 17 August 2018 was patchy. He said he could not recall a discussion between him and the accused about the accused organising an attendance at “puppy school” the following day, nor regarding the need for the accused to work on Sunday. He agreed that when they were walking towards the complainant’s car, the accused had his hands in his pockets. He agreed that the accused at no stage raised his voice.[18]
[17] T 29 L 6.
[18] T 229 L 18.
Ms M
Ms M had children who attended the school at which W and F attended. She said that on 17 August 2018 she arrived at about 2.45pm to collect her children from school. She was walking with Ms C. She said her children ran to the playground and she then saw the complainant leaving the school. She decided to collect her children and leave. She was walking at some distance behind the complainant.[19] She said that F was holding the complainant’s hand, and that W was with one of her children behind the complainant but in front of her. She said that the complainant was carrying F’s bag over his left shoulder and holding F’s hand with his right hand.[20]
[19] T 32.
[20] T 33 L 7.
She said that as she was walking she heard a noise and saw a person get into his car. She saw the complainant on his hands and knees next to the gutter.[21] She said the sound she heard was F yelling “daddy, daddy, daddy” loudly. The person she saw getting into the car was the accused.[22]
[21] T 33 L 35.
[22] T 34 L 11.
It is apparent she did not see the accused strike the complainant, nor any events immediately preceding that blow.
Ms C
Ms C also had children who attended the same school. She knew the complainant. Her son was friends with the complainant’s son. She knew that the accused was F’s father. She had seen the accused at school pickups, playing with F or sitting at the playground while F was playing at the playground.[23] On 17 August 2018 she had collected her children from school. She saw the complainant. She walked across the oval to collect her children. She was walking with Ms M having a general conversation. She saw the complainant walking in front of her across the oval. F was walking alongside but she could not recall which side. She said the complainant was carrying F’s bag over his right shoulder.[24] She did not see where W was. She could not recall how far away the complainant was in front of her. She arrived at a point near where the cars were parked and then noticed Ms M start running towards the cars. She looked up and saw the complainant on the ground.[25] She saw the accused driving away.[26] It is apparent that she did not see the accused strike the complainant nor the events immediately preceding the blow.
[23] T 37.
[24] T 39.
[25] T 39.
[26] T 40.
CCTV Footage
CCTV footage was admitted into evidence.[27] That depicted the complainant, F, and the accused walking together at a time which was just before the charged incident. The footage is of no particular assistance. The incident occurred at a time when the accused and the complainant were entirely obscured by a tree.
[27] Exhibit P3.
FE
A audio-visual recording of the interview of FE conducted on 12 September 2018 was received into evidence.[28] She was able to say that the complainant fell to the ground and that he had blood coming from his mouth, but I do not consider that her evidence assists in the determination of the issues for consideration. Indeed counsel for the DPP submitted that F was not able to provide any evidence regarding the blow struck by the accused, and had merely tendered the recording for completeness.[29]
[28] Exhibit P5.
[29] T 43 L 4, and Agreed Facts – Exhibit P9 facts 6 and 7.
WE
The recording of the police interview of WE conducted on 14 September 2018 was received into evidence.[30] W was walking with his friend T and discussing a toy or game which they clearly shared enjoyment of, and a fascination with.[31] W said that he was walking to their car, and then saw the complainant “on the floor” and the accused drive away. He said he didn’t see a punch or kick. He said he only saw the complainant fall to the ground and the accused drive away.[32] He said that the accused must have said “maybe another week to have F and then he hurt, then he must have hurt him”. Later he said that the complainant was “walking to our car, and then I saw him talking to [the accused] about something, and then [the accused] got angry and then pushed him to the ground I’m pretty sure.”[33]
[30] Exhibit P6.
[31] Exhibit P6 p 6-7.
[32] Exhibit P6 p 7.
[33] Exhibit P6 p 9.
It is apparent that W’s comments in the interview were reconstruction, based, it appears on things he had heard. I do not consider that W’s evidence provides any assistance. I am of course in no way critical of him in making that finding.
The Accused’s Interview by Police
The recording of the police interview of the accused was admitted into evidence.[34] The accused was arrested and cautioned on 26 August 2018. He did not exercise his right to silence, nor his right to have a solicitor present. He gave an account of the charged incident. He said that the complainant had always been somewhat jealous of him.[35] He said that on the day of the incident there was a discussion about visits and that he had said to the complainant that the visit should be at the usual time of about 12 o’clock. The accused had booked his puppy in for puppy school for training. He had told the complainant that. The accused said the complainant said we can’t do that or we won’t do that, as F had to go to the complainant’s niece’s place tomorrow. The accused said there was a discussion about trying to make arrangements. He said to the complainant “what about a couple of hours today” and the complainant said that that was not possible as he had an appointment. The accused said “look, what’s going on D”.
[34] Exhibit P7.
[35] Exhibit P7 L 216.

The accused said that the complainant had a lot of things going on. The complainant became somewhat aggressive and then “he went to hit me and I sort of went like that (indicating) and then I hit him with my left and then he fell to the ground.”[36] The accused said the children must have seen the complainant on the ground and were crying out. The accused said he thought the best thing to do was go to the police station and tell police what had just happened.[37]
[36] Exhibit P7 L 219-236.
[37] Exhibit P7 L 237.
The accused said that he had struck the complainant once.[38] He was asked which side of the complainant’s face he had struck and said the left side. I observe that the fracture and the surgical scar is on the complainant’s right cheek. That would be consistent with a blow struck with the left fist in the event that the two were facing each other.
[38] Exhibit P7 L 262.
The accused was asked about the CCTV footage, which, it was put to him, showed the complainant walking holding F’s hand with his left hand, and his right hand holding the backpack over his shoulder, and showing the accused on the right side as they walked along. The accused said that F had walked off with other children, but after the incident she came running back.[39]
[39] Exhibit P7 L 303.
The accused said that it was a “heat of the moment” thing, and that it was basically self-defence.[40] He said that he thought what had happened was serious, which is why he had attended the police station. The accused said there was another person present who was a friend of the complainant’s, and the accused did not regard himself as simply having left the complainant on the ground unattended.[41]
[40] Exhibit P7 L 368.
[41] Exhibit P7 L 379.
The accused reiterated the circumstances leading up to the incident when interviewed. His answers were somewhat discursive. The accused said he was asking the complainant if he could see F more often. He said the complainant did not answer. He said the complainant upon being asked again, became angry and told him to “fuck off”. The accused said the complainant was usually a very quiet person, and so he could tell the complainant was angry. He said when the complainant said “fuck off” he turned towards the accused, which made the accused flinch. He said the complainant raised his right hand in a closed fist and swung a punch. The accused said it was “like a very uncoordinated swing” which caused the accused to move backwards.
The accused said he recalled F walking off while he and the complainant were speaking. He said the complainant was becoming aggressive and irritated, probably as a result of the accused asking all of the questions about contact visits.[42]
[42] Exhibit P 7 L 519.
The interviewing officer asked the accused what the nature of the relationship between he and F’s mother was. The accused said that he had engaged in a brief relationship with her, during a time when she was living with the complainant and engaged to him.
The accused again said that his actions were “more of a self-defence” and “I thought he was going to … hit me so I sort of hit him back.”[43] The accused was questioned in detail about that but maintained that the complainant had swung at him first.
[43] Exhibit P 7 L 591.
The accused was asked whether he had any martial arts training. He said that he had done boxing training some years ago.[44] Under further questioning it was established that the accused was a boxer in the Northern Territory, and made the representative team, and engaged in Olympic trials.
[44] Exhibit P7 L 415.
Agreed Facts
There were a number of facts agreed, first in relation to the CCTV footage and the interviews of the children, which are not necessary to reiterate.[45] A further schedule of agreed facts included that the complainant was admitted to the Flinders Medical Centre on 17 August 2018; that his lower jaw was fractured in two places; that the injury was consistent with being punched once to the left jaw in an upper cut motion; that surgical intervention including the insertion of metal plates and screws was required to repair the fractures; and that the complainant continued to suffer from decreased jaw movement, pain upon eating, and headaches.
[45] Exhibit P2.
The Law
Section 15 of the Criminal Law Consolidation Act provides:
(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.
In Morgan v Colman,[46] Wells J summarised the law relating to self-defence in the following terms:
[46] Morgan v Coleman (1981) 27 SASR 334 p 336.
The law relating to self-defence is best applied in practice by first formulating it for the purposes of the particular case under examination in a form that is disengaged from the rules governing onus of proof. The law on onus of proof may be introduced at the stage when an appropriate statement of the law is to be applied to the particular facts.
The law relating to self-defence ought always to be stated in a form that can be readily understood by men and women in the street, in the home, in the jury box, and in courts of summary jurisdiction. All that should be called for in its application is an understanding of human nature, fairness and commonsense.
It is both good sense and good law that where a person is subjected to, or genuinely fears, an attack (which may take the form of unarmed violence or the use of a weapon) he may use force to defend himself.
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.
But it is in the nature of things that certain sorts of situations in which violence erupts will tend to recur, and, accordingly, the application of the general principle to those situations has given rise to some practical rules which are worth restating—
(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 a 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.
(e)     In all cases, for the purpose of determining whether the person claiming to have acted in self-defence did no more than was reasonably necessary, the possibility of doing something less than using force himself must always be borne in mind, having regard to the circumstances. Thus the possibility, for example, of parley, of retreat, of evasion, of summoning aid, must always be considered, though the failure to have recourse to any one or more of those alternatives is not, ipso facto, decisive.
(f)     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.
(g)     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.
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.
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 lawful 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.
Submissions
Prosecution Submissions
Counsel for the prosecution submitted that I could be satisfied beyond reasonable doubt that the accused punched the complainant once to the face with enough force to fracture his jaw in two places and to knock him down. I accept that. Counsel submitted that it was open to find that one of two things had happened: either that the accused had struck the complainant without warning out of anger and frustration; or that the complainant “did take a swing at the accused that afternoon before the accused delivered the punch to the complainant’s face”. The only evidence that the complainant struck the first blow was that contained in the interview with police. I bear in mind that that account of the incident was exculpatory, and was not tested by cross-examination. It is therefore somewhat limited in weight.
Counsel for the prosecution submitted that as a result of the complainant’s attitude, his lack of preparedness to allow the accused to have the contact visit on the Friday on which the incident occurred, and the proposed changes to the weekend arrangements, the accused had reason to be angry and frustrated. In in view of the complainant’s continued resistance at facilitating the accused’s time with his daughter, the accused must have felt a degree of anger and frustration, which caused him to snap and to release his anger by punching the complainant to the face.
Counsel for the prosecution submitted that I should find that the complainant did not take a swing at the accused, and that I should reject the accused’s account of the complainant saying “fuck off” and swinging his fist at the accused. Counsel pointed to Ms M’s evidence that upon approaching the complainant the complainant was holding onto his jaw and saying “did anyone see it? did anyone see it?”[47]
[47] T 70 L 2-7.
Counsel’s alternative submission was that were I to consider it a reasonable possibility that the complainant swung a punch at the accused, I would need to consider whether the prosecution had proved beyond reasonable doubt that the accused’s conduct was nevertheless unlawful, on the basis that I would need to consider whether the accused genuinely believed that punching the complainant to the face was necessary and reasonable in his own defence, and that in the circumstances as the accused genuinely saw them, the conduct was reasonably proportionate to the threat which he believed he faced. Counsel quite properly submitted that the prosecution bore the onus of proving an absence of self-defence, beyond reasonable doubt.
Defence Submissions
Counsel for the accused conceded that the only direct evidence as to what occurred in the immediate lead up to the delivery of the accused’s blow came from the accused’s police interview.
Counsel for the accused submitted that the accused’s version was not inherently unlikely. Prior to the incident the accused was walking with his hands in his pockets. The two men were speaking about arrangements for contact visits with F. The accused did not raise his voice. The complainant had agreed that the relationship between the two had been hitherto civil, and that the accused had been flexible about his access visits with F.
Counsel for the accused submitted that the evidence that the accused had walked quickly to his car and driven off should be considered in the context of him driving straight to the police station to inform police as to what had occurred.
Counsel submitted that the proportionality of the accused’s response should not be too finely weighed, and that responding to the threat of a punch, with a single punch, was not disproportionate.
Consideration
The issue to be determined, as put by counsel for the accused, was whether the prosecution could exclude, beyond reasonable doubt, that when the accused struck the complainant, he was not acting in self-defence.
I am not able to accept as a positive finding that the complainant threw a punch at the accused, nor however am I able to exclude as a reasonable possibility that the complainant did so.
There is no evidence that the accused became angry. The complainant did not suggest so. The accused was consistent, when interviewed by police, that the complainant had become angry and had thrown a punch at him. He described it as an uncoordinated sort of punch. Had the accused been fabricating the threat he felt, it was unlikely that he would have described the punch as uncoordinated. He said that his reaction was in effect, immediate, and he had swung a single blow to the complainant’s face, a punch with his left fist. The fact that the accused was trained in boxing does not detract from his account. Indeed his reaction in striking back, and the force of that blow, accord with that background, and accord with the accused’s version of events.
I do not consider the rendering of a single blow in response to a perceived attack to be a disproportionate response, despite the significant injury that resulted.
As I have said, I cannot exclude as a reasonable possibility, that the complainant “took a swing” at the accused, and that the accused responded, in self-defence, by punching the complainant.
Verdict
Accordingly, the charge is not proved beyond reasonable doubt, and there must be a verdict of not guilty.