R v WC

[2024] NSWDC 98

District Court

New South Wales

Medium Neutral Citation:

R v WC [2024] NSWDC 98

Hearing dates:

22 March 2024

Date of orders:

05 April 2024

Decision date:

05 April 2024

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

See [40]

Catchwords:

CRIME — Violent offences — Reckless wounding

CRIME — Public order offences — Affray

CRIME — Summary offences — Custody of knife in public place or school

CRIME — Violent offences — Assault occasioning actual bodily harm

Legislation Cited:

Crimes (Appeal and Review) Act 2001

Cases Cited:

Charara v R [2006] NSWCCA 244

Dyason v Butterworth [2015] NSWCA 52

Fox v Percy (2003) 214 CLR 118

Lunney v DPP [2021] NSWCA 186

Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1

McNabb v DPP [2021] NSWCA 298

Category:

Principal judgment

Parties:

Rex (The Crown)
WC (The Offender)

Representation:

Solicitors:
Buckner for DPP
Winn for WC

File Number(s):

2021/00134831

Publication restriction:

NA

JUDGMENT

Introduction

1. This is an appeal pursuant to section 18 the Crimes (Appeal and Review) Act.

2. The nature of a s18 appeal has been subject of numerous Court of Appeal and Court of Criminal Appeal decisions. Based on cases such as Charara v R [2006] NSWCCA 244 and Dyason v Butterworth [2015] NSWCA 52 the approach to a section 18 appeal can be summarised as follows:

1. An appeal against conviction is to proceed by way of a rehearing on the basis of evidence given in the original Local Court proceedings: s18(1) Crimes (Appeal and Review) Act 2001, with fresh evidence permissible with leave.

2. The appellate judge is to form their own judgment of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the hearing: Charara v R [2006] NSWCCA 244 at [18]

3. The Court is entitled to consider the reasons of the magistrate including an assessment of credibility issues because the appellate function could not properly take place without reference to them: Charara v R [2006] at [23]-[24]

4. The Court is obliged to give the judgment which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].

5. The Court is not obliged in every case to undertake a complete review of the whole evidence and form its own view of the appellant’s guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lunney v DPP [2021] NSWCA 186 at [44].

3. The approach may also be described in the way stated by Justice Gageler (as he then was) in Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1 as the “correctness standard” which was his Honour’s way of describing the standard being spoken of in Fox v Percy. With respect that approach is entirely in line with what was said by Bell P (as he then was) at paragraphs [25] through to [28] of McNabb [2021] NSWCA 298,which included at [25]:

“the task for a District Court judge in hearing a section 18 appeal is to form his or her own judgment on the facts and to determine on the basis of the evidence that was before the magistrate (supplemented by any further evidence received pursuant to section 18(2) of the CAR Act or as a result of the calling of a witness pursuant to section 19) whether that evidence was sufficient to demonstrate the appellant’s guilt beyond reasonable doubt. If it did not, error will have been established. Error of law in reaching the conviction may also be established and the rehearing will involve the court reaching a fresh conclusion as to the appellant’s guilt on the basis of evidence given in the Local Court but without the error of law which tainted the result at first instance.” His Honour then went on to observe that a dismissal of a section 18 appeal against conviction will necessarily carry the conclusion that the magistrate did not commit “some legal factual or discretionary error”, citing Allesch.

4. McNabb is authority for the proposition that an appeal under section 18 does require demonstration of a factual, legal or discretionary error in order to succeed. The judgment of Bell P in reaching that conclusion acknowledges that there is authority that no error is required. Conversely his Honour noted that upholding an appeal will occur because the judge on the rehearing will have concluded the appellant’s guilt was not established beyond reasonable doubt which necessarily involves a conclusion that the magistrate committed some legal, factual or discretionary error.

5. In other words under section 18 the District Court judge will not interfere unless it is shown that the magistrate’s decision is wrong and if that conclusion is reached there will certainly be an error of law, fact or discretion; so that what the District Court judge is doing is determining the correct result based on the material being considered.

The issue on appeal

6. The parties have identified a specific point on which the appeal is founded and it would be fair to say the hearing at first instance also focused on that one point. What is in issue is the so called second limb of a self defence argument, and here being whether the conduct of the appellant in grabbing hold of a knife and then with the knife hitting the complainant three times which had the effect of stabbing him has been shown by the Crown in all the circumstances of the case to not be a reasonable response in the circumstances as the appellant perceived them.

7. A claim of self defence succeeds where two circumstances exist. The first is that the person believes that what was done was necessary in order to defend themself (or another, but that is not the situation here). The second is that what the appellant did was a reasonable response in the circumstances as he perceived them.

8. Although “self-defence” is referred to as a defence, it is for the Crown to eliminate it as an issue by proving beyond reasonable doubt that the striking of the complainant was not done by the appellant in self-defence. It may do this by proving beyond reasonable doubt either:

1. that the appellant did not believe at the time of striking the complainant that it was necessary to do what he did in order to defend himself, or

2. Striking the complainant with the knife was not a reasonable response in the circumstances as the appellant perceived them.

9. It is the appellant’s perception which must be considered and not what someone else might have perceived. The matter should not be looked at with the benefit of hindsight, but in the realisation that calm reflection cannot always be expected in a situation such as the appellant found himself to be in.

10. It is accepted by the Crown that the appellant did believe that his conduct was necessary to defend himself. As already noted, what is in issue is the second limb. The question is whether the Crown has proved beyond reasonable doubt that the conduct of the appellant was not a reasonable response to the circumstances as perceived by the appellant. This question is to be determined by a partly subjective approach by considering the circumstances the appellant found himself in, as perceived by him, and partly objective, by determining objectively whether the response in those subjective circumstances has been established by the prosecution to not be reasonable.

Facts

11. The appellant was charged with three offences; reckless wounding, affray and custody of a knife in a public place. He pleaded guilty to the knife charge, and not guilty on the first two counts, arguing he acted in self defence.

12. The incident occurs at the Nambucca Head Shopping Centre. Almost the entire incident is able to be viewed by the CCTV evidence, and there was no submission that some matter of importance to determining the issues occurred out of the view of the CCTV (it did seem at one point that an alleged spit by the appellant could not be seen, but a review of the second external CCTV file shows what I find to be a spit, a finding also made by the magistrate and denied by the appellant).

13. There was CCTV footage both outside and inside the shopping centre. The disc had 4 files, the first two being of the outside and the second two being of the inside of the shopping centre. At the hearing of this appeal the focus was on the internal footage however the second file provides context as to what is occurring. That video shows the appellant and 4 others outside the entrance to the shopping centre. The footage shows the appellant and 2 others with him, as well as the complainant together with another man in an orange hi vis work shirt, which other evidence suggests is one of two sons of the complainant present at the shopping centre. Just what is being said is not known; the footage shows the appellant signalling to his friend in a white shirt to go around the side of the shopping centre and then the appellant walking towards the shopping centre entrance and slightly ahead of the complainant. The appellant seemingly engages in some conversation with the complainant and moves his head in a manner consistent with spitting just in front of the feet of the complainant. The video on the next file is on the inside of the automatic glass sliding entrance door of the shopping centre. First the friend of the appellant wearing a red jumper enters, then the appellant wearing an orange jumper, and then the complainant can be seen to enter, but the spitting action, which I find is a spit, consistent with the evidence of the complainant, is not captured. The appellant is still talking in what might be considered a mouthing off fashion, or provocative or antagonistic fashion to the complainant who rather languidly, and equally antagonistically, follows him down the hallway of the shopping centre. At this point the youth who had run around the side on the outside enters the hallway at a run from the left. The appellant then looks over his shoulder at the complainant, then stops and looks at the complainant and the fight then starts with the complainant being the aggressor and the struggle then occurs. By the timing on the CCTV the actual period of the contact is approximately 30 seconds. What I have termed a struggle is really a one sided fight, with the complainant dominating.

14. The video shows it is the complainant who lays the first blow. Bearing in mind that blow follows what is obviously what might be called posturing and antagonistic behaviour of the parties with ultimately the appellant stopping and turning and looking at the complainant, and the complainant goes up to him and he without any preamble thrusts his left hand towards the appellant’s head. The appellant described this in his police interview, and it was not contradicted, as a punch to the head. The complainant then pushes the appellant into a wall and then, whilst all the time holding onto him, variously and with various degrees of success tries to punch and knee him. The fight concludes on the other side of the hallway from where it started and the appellant walks past and actually bumps into the complainant, seemingly deliberately, in going to collect his jumper and cap. That is relevant as it clearly shows a distinct lack of fear or at least so far as there is fear not such as to cause him not to go anywhere near the complainant who has just effectively roughed him up. The complainant and his two sons then leave without any apparent sign of any stabbing.

15. The fourth and final video file shows the fight from the opposite angle. Even before anybody involved arrives there is what appears to be a piece of plastic lying on the floor, and is not to be confused with a knife. On this viewing as soon as the fight starts you can see a black object fall out near the garbage bin which I infer is the knife that the appellant pleaded guilty to having unauthorised possession of. The appellant in his police interview stated in effect that he carried a knife for protection. Once that knife is lost, and it appears to come possibly from his left pocket where his hand had been, the scuffle continues and there then appears to slide across the floor another knife. There was no submission made confidently as to where this second knife came from. The finding of the magistrate was that it was slid across the floor by one of the friends of the appellant. I informed the parties that unless there is any objection I would review the CCTV in chambers and with the benefit of being able to replay it many times the conclusion I come to is that the second knife in fact fell out of the appellant’s jumper so that he in fact was carrying two knives when he entered into the shopping centre (see endnote).

16. In the police interview with the appellant the appellant states that the people who turned out to be the complainant and two others were “bridging up” on his friend Dominic and he was having none of that and stepped in front and told his friend to run around the IGA as can be seen in the video. The appellant says he was not getting involved and then he, the complainant had words to say and the appellant turned around and said “what” and that’s when the complainant ended up striking him, the appellant. The appellant goes on to say that his jumper was over his head and that’s when he saw the knife on the ground and that he was fearing for his life and had no other options so that’s what he thought was right at the time. He said he did not know where the knife came from. It was never put to him that it was his knife in the way that I have concluded above. He then said he did have “this thing oh on the side of me. I did pull it out but it had a guard on it”. He said he didn’t end up using it which I take to be the one that fell out near the garbage bin and he then says his jumper got taken off over his head and he then saw what he referred to as a kitchen knife. Asked why he was carrying a knife he said “because the day before that um my mates um they ended up having… brawl and there was a bit people like hunting them down” and “and I just thought I’d like carry it for my own safety”.

17. When asked about what happened beforehand he said he did not know these people and he said as much saying “I don’t even know you bruz”. The complainant said “bruz” back and the appellant said he kept looking behind himself and the complainant said “keep looking behind you bruz” and the appellant said “what” and I was like oh… Oh what are you going to do and that’s when he said I’ll… You” “and that’s when I just stood there and that’s when he approached me first”.

18. Contrary to what seems fairly plain on the CCTV he said he didn’t spit or do anything at the complainant.

19. The appellant did not give evidence at the hearing. That of course is something that cannot be taking into account in any way adverse to the appellant.

20. The oral evidence at the hearing consisted of the evidence of the officer in charge, and the complainant and his two sons. The complainant gave evidence of the spitting occurring at the front doors consistent with the video. Consistent with the appellant he said the appellant said what are you going to do about it and that they then got into a scuffle. He did not know that he had been stabbed. As he walked out he noticed the blood. He then went to the police who told him he should go straight to the hospital.

21. The complainant agreed to being over 100 kg and he is self-evidently taller. It is also apparent there was something of a history between the complainant and the appellant if not directly then by their respective sons and friends.

Basis of appeal and discussion

22. The appellant contends the magistrate has failed to take into account relevant considerations; that the magistrate has then taken into account irrelevant considerations; has made inconsistent findings of fact; and should have found self defence was not negated by the Crown.

23. As to the alleged failure to take into account relevant considerations it is said the magistrate did not take into account the age of the complainant comparative to the age of the appellant; their size disparity; the number of blows inflicted; the involvement of the second Yardy family member in the assault and the failure of the appellant’s conduct to bring an end to the assault upon him. At T7 of the judgment on 22 December 2023 the fact of the complainant being older is noted, as is what the magistrate found to be significant provocation by the complainant. The feature of the fight being between an older man, whose children are involved and who are of similar age if not older than the appellant, was expressly noted by the magistrate. The magistrate at T5 describes the fight including that the complainant threw the first punch; she describes it at T7 as both a bashing and a beating that the appellant was receiving, and at T5 she states the appellant did not land any punches on the complainant. This appeal point has no merit. As to the involvement of the complainant’s son, that is fleeting at best, and in my view does not detract from the magistrate’s findings.

24. Next it is said irrelevant considerations were taken into account including the potential serious harm that can be caused by the use of a knife; that a different knife had been brought into the premises; the readiness to pick up the second knife. The argument was this suggested a concern based on public policy. It is conceded that the use of a knife is a relevant consideration.

25. The matters taken into account that are said to be irrelevant are very relevant. To assess the reasonableness of the response it is logical to consider the possible consequences of the response. The fact that he was carrying a knife on his own admitted purpose for protection indicates a preparedness to use it which is also a relevant matter to bear in mind though plainly not determinative.

26. The argument is there has not been sufficient regard had to the reasonableness of the conduct having regard to the circumstances in which the appellant perceived them. The finding of the magistrate is at T7.23-.43. Prior to that, at T7.13 the magistrate accepted that the appellant believed that stabbing the complainant was the only option he had to stop the assault. She then said that response was not a reasonable response (though it is expressed “I do not accept the response [to] stabbing the complainant was a reasonable response to the confrontation”, when the onus is on the Crown to show beyond reasonable doubt that the response was not a reasonable response. This is an error, which is not relied on, and for reasons given below, does not affect the outcome). It is at T7.23 that the magistrate says the stabbing is “disproportionate to the bashing [the complainant] received”. That succinctly sums up the position which can be, and is, elaborated on below. Further, rather than being irrelevant policy considerations, the reference to the preparedness of the appellant to use a knife, in that he carried one for protection, and on an unchallenged finding had his hand on it before dropping a knife next to the garbage bin, shows a willingness to resort to knives from the beginning, and not the result of some panic situation. The magistrate’s findings and reasons in this regard are correct.

27. As to the inconsistent findings of fact point, that is a reference to the magistrate finding the evidence did not support the appellant grabbing the knife in a panic to defend himself in contrast to the finding that the young person believed the stabbing was the only option he had to stop the assault occurring. I accept that there is a seeming and likely inconsistency in those findings. That said, the first finding can be viewed as relating to the second limb, and the second relates to the first limb. That is, the appellant believed stabbing was his only option, but it was not in the circumstances in which he perceived them, a reasonable response. In any event, in my view the correct decision has been reached. My review of the evidence and assessing the matter as to what I consider is the correct decision leads to the conclusion that stabbing was not a reasonable response.

22. In the Crown submissions it is accepted the appellant held a genuine belief that he needed to use the knife in the way that he did which is accepting that the first limb is made out. What remains an issue is whether striking the complainant was a reasonable response and it is an onus the Crown bears to show that it was not a reasonable response.

23. As to the second limb the Crown argues that the appellant could have cried out for help or used his fist or threatened the use of the knife. These responses are viable, particularly when the situation is properly viewed as little more than some push and shove by two suburban protagonists mouthing off at each other at the local shopping centre. That the appellant’s response of stabbing was not reasonable is demonstrated by the fact that after stabbing the complainant the fight continued on with the complainant remaining dominant and petered out of its own accord.

Determination

30. The test for self defence has been set out above. To so act the person must believe that what was done was necessary in order to defend themselves. Secondly what the appellant did must be a reasonable response in the circumstances as he perceives them.

31. The appeal ground of an inconsistent finding of fact has been considered above to be arguably made out, but also to be reconcilable with a proper consideration of the two limbs of self defence. As will be apparent from the above, and by what follows, on my own review of the evidence the magistrate’s decision is correct.

32. Just what this appellant perceived can only been gleaned from the observations on the CCTV and his recorded interview referred to above. At Q78 he was asked at a time when he couldn’t see much and saw the knife on the ground “and what just run me through what you were thinking and what went through what you did what you did when you saw the knife” and the answer was “I was thinking um is he going to stop or like what’s going to happen like if I do this will he get off me? That’s when I grab that and like that’s the first thing that come to my head. When then asked what he did he said “I did that like I don’t know two or three times I’m not sure” which must be a reference to his motions with the knife.

33. At Q 86 there was this question “okay what did you I know you said you were scared. What did you think though hitting somebody with a knife would do?” And he answered “I don’t know. It wasn’t the smartest thing I’ve done but”.

34. There was Q150 when he was asked “do you think if if the knife or when the knife impacted him that it would cause an injury to him?” And the answer was “I wasn’t really thinking at the time to be honest. I I was fearing for my life” an answer the officer seems to have accepted for he next said “okay all good”.

35. In my own assessment of the evidence in this case, (and the advantage of the magistrate in seeing the witness is recognised, though that advantage does not extend to the CCTV evidence or the police interview) the conclusion I reach is that the appellant has largely brought the situation upon himself because he wanted to have a fight. He spat towards the complainant. He waited for the complainant to come to him. He had his hand in a pocket which was where he had the knife which fell to the floor and came to rest near the garbage bin. Having exhibited the bravado of a young person seeking to engage with an older person he received his comeuppance of being pushed around by the immature older person. Yes he was being pummelled but to say he was at risk of his life being ended is hyperbole. His own assertion of fearing for his life does not match the immediate conduct before the fight, nor after the fight where he bumps into the person he just thought was, on his evidence, going to kill him, a proposition the magistrate implicitly rejected, and rightly so.  Had the magistrate accepted the appellant feared for his life, the self defence argument would be much stronger.  In my own assessment, for the reasons just outlined, not least of which is the contrasting answers to Q78 and Q150, of which I consider A78 to more accurate, I do not accept the appellant feared for his life.  The applicant was no doubt fearful that he was going to get hurt when he was being manhandled and punched and kneed, but the reasonable response to that was to fight back or cry out. What is not reasonable is to use a weapon such as a knife.

36. What frankly was occurring was that the appellant was losing a fight that he took so little effort to avoid that it can be inferred he wanted it to happen, the fight then occurs, and he then escalated it by using the knife, so that he would not lose the fight rather than acting in reasonable self defence.

37. There needs to be some common sense applied here. What occurred between the appellant and the complainant shows nobody in a good light and that applies as much, indeed more, to the complainant as to the appellant. Putting out of one’s mind what one would hope would be the more mature and adult conduct to be expected of the 54-year-old father of two what we have is two people who simply sought to engage in a fight for whatever reason. One of them had a huge advantage of size and weight. The other carried a knife to protect himself. They are antagonistic towards each other and provoke each other and in effect front up to each other. One strikes the other and a scuffle follows. An option for the obvious loser of this contest is to fight back. There is also the option in a very public place of screaming blue murder to get some attention though the passers-by did not seem terribly interested in becoming involved based on the CCTV. The appellant was always losing the fight; his clothing was pulled over his head and he was very much on the losing end of what was going on. He says he was fearful of his life and thus grabbed the knife on the floor and thrust it into the side of the complainant. The appellant also said he thought at the time if he used the knife the complainant will “get off me”. Following the fight the appellant walks over from where the fight ended and to where the complainant was now standing so as to pick up his jumper. He does this in a manner that I would describe as defiant and includes brushing past the complainant. Whilst he may have been frightened and perhaps apprehensive and or anxious in the course of the fight, that post fight conduct is not consistent with someone who is fearful or has just within the last minute been fearful that his life might end at the hands of the complainant. The appellant was trying to make the complainant “get off me” as he said in his first response as to why he used the knife (see at [32] above) and not acting to save his life.

38. In my view it is very plain that what was not a reasonable response, having engaged in conduct almost certain in the circumstances to result in some push and shove, is to then introduce a knife. It was a wholly disproportionate response.

39. Endnote: In these reasons reference is made to the appellant entering the shopping centre with two knives, not one, based on my repeated viewing of the CCTV footage in chambers. The parties were invited to make further submissions as to this view. The appellant submitted the Prosecution case was conducted on the basis that the knife used by the appellant was passed to him during the fight, and so it should not now be found otherwise. I accept that submission. Accordingly, despite what is seen on the CCTV evidence, the view expressed above has been put aside and the matter dealt with in the way it that was accepted at the Local Court hearing. The conclusions reached above are all reached on the basis the appellant entered into the shopping centre with only one knife.

Order

40. The appeal is dismissed.

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Decision last updated: 15 April 2024