Rose v The King

[2023] NSWDC 519

District Court

New South Wales

Medium Neutral Citation:

Rose v R [2023] NSWDC 519

Hearing dates:

9 and 24 November 2023

Date of orders:

24 November 2023

Decision date:

24 November 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1 Appeal allowed.

2 I set aside the conviction and penalty imposed by the Magistrate.

Catchwords:

CRIME — Appeals — Appeal against conviction

Legislation Cited:

Crimes Act 1900

Crimes (Appeal and Review) Act 2001

Cases Cited:

AGv Director of Public Prosecutions [2015] NSWCA 218

Chararav R [2006] NSWCCA 244

Fox v Percy (2003) 214 CLR 118

GianoutsasvGlykis [2006] NSWCCA 137

Lumney v Director of Public Prosecutions [2021] NSWCA 186

McNab v Director of Public Prosecutions [2021] NSWCA 298

R v Conlon (1993) 69 A Crim R 92

R vKatarzynski [2002] NSWCCA 613

R vViro (1978) 141 CLR 88

Category:

Principal judgment

Parties:

Tony Rose (Appellant)
Rex (Respondent)

Representation:

Solicitors:
Kernick Law (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2022/23217

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

Wyong

Jurisdiction:

Local Court

Date of Decision:

19 September 2023

Before:

Magistrate Munro

Judgment

1. On 19 September 2023, Tony Edward Rose (the appellant) was convicted of one count of affray by his Honour Magistrate Munro sitting at the Wyong Local Court. The appellant appeals as of right against that conviction.

2. The only issue on the appeal is whether the prosecution has established beyond reasonable doubt that the appellant was not acting in self-defence.

Facts

3. On 24 January 2022 there was an altercation between Simon Stride (Simon), Alison Kelly and the appellant on the road of a caravan park in Long Jetty.

4. The appellant was driving his vehicle past Simon’s caravan, when he slowed the vehicle and yelled something towards Mr Stride. The appellant continued to drive slowly down the road. Simon and Ms Kelly approached the vehicle and there was a heated argument. Mr Stride attempted to forcibly pull the appellant out of the vehicle.

5. Bradie Stride (Bradie), Simon’s daughter, described these events as Mr Stride chasing after the appellant with Ms Kelly following him. Bradie’s evidence was that she also chased after her father and step-mother. Bradie’s evidence was that her father ran up to the driver’s door and tried to get the appellant out of the vehicle and this continued until the appellant got out of the vehicle.

6. The appellant got out of the vehicle holding a shifting spanner behind his back in one hand. He approached Simon and Ms Kelly who confronted him. The exchange of heated words continued. He pushed Ms Kelly to the ground, before returning to his vehicle and speeding off.

7. Bradie’s evidence was:

He was swinging it around like he was going to hit someone with it but I believe at this point, that was when he pushed my stepmum over but I don’t think he used the tool. He was kind of just maybe defence, just to swing it around I don’t know. It looked like it but no-one actually got hit with that.

8. Bradie’s evidence was that her father and stepmother had been drinking before the incident, first at the pub and then at the caravan when they returned. Bradie followed after her father because he did not want him to get into an altercation because he was intoxicated.

9. Simon gave evidence that there was a confrontation earlier in the day with the appellant at the pub, where Simon accused the appellant about taking his boat, without consent. Simon could not recall how much he had to drink at the pub.

10. Simon gave evidence that later in the caravan park that he chased after the appellant’s vehicle and that he tried to grab the appellant, stating that he had, “had enough”.

11. Simon’s evidence was that the appellant got out of his vehicle and walked 20 metres back towards them with his hands behind his back. He pulled out the shifting spanner before pushing Ms Kelly to the ground. Simon’s evidence was that he did not do anything with the spanner.

12. In cross-examination, Simon accepted that he was angry with the appellant at the caravan park. He was “not sure” if he had threatened the appellant. He accepted that he ran towards the appellant’s vehicle.

13. The appellant’s evidence was that at the pub there was other discussion about an alleged debt owed by Simon to the appellant. His evidence was that when he saw him at the caravan park he yelled out to him that he did not pay his bills. The appellant’s evidence was that he was not watching Simon as he drove past and that he next noticed him when he was struck through the driver’s door window and Simon grabbed the collar of his shirt and tried to pull him out of the vehicle.

14. He drove faster to get away from Simon and travelled about 150m before hearing something hit the vehicle or the boat he was towing. He stopped and got out to see what had happened. He saw Simon and others running towards him and yelling “Stop”. He took the shifting spanner with him when he got out of the vehicle to protect himself because he has a number of injures.

15. The appellant’s evidence was that there was another male present, a friend of Simon’s. The appellant said that Ms Kelly swung a few blows at him before falling over drunk and then he left.

The relevant law

16. The applicable principles to be applied in determination of the appeal are as follows.

Nature of the appeal pursuant to s 18 Crimes (Appeal and Review) Act 2001

17. Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31].

18. The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record:  Charara v R [2006] NSWCCA 244 at [17]-[22].

19. Whilst the magistrate’s reasons are not part of the certified transcripts referred to in s 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24].

20. 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].

21. An appeal to the District Court under s 18 requires the demonstration of factual, legal or discretionary error to succeed: McNab v Director of Public Prosecutions [2021] NSWCA 298 at [24] (Bell P) and [83]-[90] (Basten and McCallum JJA).

22. The term “error” has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of “error” in the ordinary meaning of that term:  AG v Director of Public Prosecutions [2015] NSWCA 218 at [34] (Basten JA) and McNab at [88] (Basten and McCallum JJA).

23. The requirement that the appellant demonstrate error does not reverse the onus of proof, in that the prosecution at all material times, bears the onus of establishing guilt beyond reasonable doubt: McNab at [26] (Bell P) and [91] (Basten and McCallum JA).

24. An appeal under s 18 does not require the District Court to undertake a complete review of the whole of the evidence and form its own view as to 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: Lumney v Director of Public Prosecutions [2021] NSWCA 186 at [44] (McCallum JA).

Self-defence

25. Section 418 Crimes Act 1900 provides:

(1)    A person is not criminally responsible for an  offence  if the person carries out the conduct constituting the offence in self-defence.

(2)    A  person  carries out  conduct  in self-defence if and only if the person believes the  conduct  is necessary:

(a)   to defend himself or herself or another person, or

(b) …

(c) ….

(d) ….

and the conduct is a reasonable response in the circumstances as he or she perceives them.

26. The statutory test for self-defence was considered in R v Katarzynski [2002] NSWCCA 613. The questions to be considered by the tribunal of fact when self-defence is raised are:

1. is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself (or another)?; and

2. if there was, is there also a reasonable possibility that what the accused did it was a reasonable response to the circumstances as he or she perceived them?

27. The first question is to be determined from a completely subjective point of view considering all the personal characteristics of the accused at the time he or she carried out the conduct. The second question is determined by an entirely objective assessment of the proportionality of the accused’s response to the situation as the accused subjectively believed he or she faced. The prosecution negatives self-defence if it proves beyond reasonable doubt that either:

1. the accused did not genuinely believe that it was necessary to act as he or she did in his or her own defence (or that of another); or

2. what the accused did was not a reasonable response to the danger, as he or she perceived it to be.

28. Care must be exercised in analysing cases involving self-defence to avoid the “unreality of dissecting into minute detail” events that occurred in a short period of time:  R v Conlon (1993) 69 A Crim R 92 at 97. Further, the self-defence need not be the sole state of mind on the part of the accused at the time he or she acted but must be the dominant state of mind on his or her part: R v Viro (1978) 141 CLR 88 at 127.

Analysis of the magistrate’s decision

29. In a short ex tempore judgment, following the conclusion of the evidence and submissions, the magistrate accepted the evidence of Bradie and Simon as honest and accurate.

30. The magistrate found that the appellant approached the others and pushed Ms Kelly to the ground. He accepted that the appellant swung the spanner around but did not hit anyone, before getting back into his car and speeding off.

31. The magistrate accepted that the first limb of self-defence was established, but decided that the appellant’s response was not a reasonable response, stating:

It seems to me more that he was acting out of frustration and wanted to confront the group rather that what would have been a reasonable response which was to drive away.

32. The magistrate concluded that self-defence had not been made out.

33. The magistrate, in his judgment, did not consider the background of the events that happened at the caravan park. In particular, that there was a history of hostility between the appellant and Simon and that Simon was intoxicated.

34. The magistrate analysed the appellant’s conduct on the basis that it would have been more reasonable to leave the scene than to do what he did. This is one thing that the appellant could have done, but in the heat of the moment, did not. This is some evidence relevant to reasonableness but not decisive.

35. With respect, I am satisfied that the magistrate fell into error by:

1. considering the appellant’s conduct in isolation and by not considering all of the relevant background and content of the altercation; and

2. by reasoning that the appellant’s response was not a reasonable one, merely because leaving the scene was objectively a more reasonable response available to him.

Consideration

36. I accept the positive credit findings made by the magistrate about Simon and Bradie. However, I note that he did not make any adverse credit finding about the appellant. In this case, I can proceed on the basis that the magistrate impliedly rejected the appellant’s account, because I am not satisfied beyond reasonable doubt that the prosecution has established on its evidence that the appellant’s response was unreasonable for the following reasons.

37. First, Simon was the aggressor in the alteration. I am satisfied that he assaulted the appellant by striking him and trying to pull him out of the moving vehicle. Simon did not deny threatening the appellant in the course of the altercation.

38. Second, Simon was intoxicated and his attack on the appellant was sustained. Simon accepted that he continued to run towards the appellant after he had tried to forcibly remove him from the vehicle.

39. Third, the appellant was faced a combined threat of at least three people running towards him. At the time when the appellant was faced with the people chasing his vehicle and running towards him, it was reasonable for him to think that he may be attacked by one or more of them.

40. Fourth, there is a major inconsistency as to what he did with the shifting spanner. Bradie’s evidence was that he waved it in the air probably in self-defence or as a warning. Simon’s evidence was that he did not brandish it in this manner. Whilst it is common ground that the offender armed himself, he was facing a sustained attack by a number of persons. I cannot be satisfied that the appellant swung the shifting spanner in the direction of anyone.

41. I am not satisfied that the prosecution has established beyond reasonable doubt that the appellant was not acting in self-defence.

Orders

42. The orders I make are as follows:

1. Appeal allowed.

2. I set aside the conviction and the penalty imposed by the magistrate.

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Decision last updated: 24 November 2023