Ryan v Police - [2012] SASC 180

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
RYAN v POLICE
[2012] SASC 180
Judgment of The Honourable Justice Vanstone
12 October 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against conviction - magistrate found appellant guilty of affray - magistrate accepted evidence of prosecution eyewitness and rejected contradictory evidence of appellant - evidence of appellant gave rise to question of self-defence - whether magistrate failed to have sufficient regard to the circumstances in which the claim of self-defence arose - whether magistrate failed to adequately articulate the way in which he resolved the critical differences in the evidence of the prosecution and of the appellant.
Held: no error of approach by magistrate - appeal dismissed.
Criminal Law Consolidation Act 1935 s 83C; Criminal Law (Sentencing) Act 1988 s 31(2), referred to.
Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34, distinguished.
Papps v Police (2000) 77 SASR 210; R v Keyte (2000) 78 SASR 68; R v Power (2003) 141 A Crim R 203; R v Beard [2004] SASC 411, discussed.

RYAN v POLICE
[2012] SASC 180
Magistrates Appeal

VANSTONE J: The appellant, Beau Zachary Ryan, was found guilty of the offence of affray, contrary to s 83C of the Criminal Law Consolidation Act 1935. It was alleged that the appellant used “unlawful violence towards another and the conduct was such that it would cause a person of reasonable firmness to fear for her personal safety”. The prosecution case was that the unlawful violence was used towards a man to whom I shall call “Williams”. The issue at trial was self-defence. The appellant gave evidence in his defence, which evidence was rejected by the magistrate.
On appeal the appellant argues that the magistrate failed to have sufficient regard to the circumstances in which the claim of self-defence arose and that he failed to adequately articulate the way in which he resolved the critical differences in the evidence of the prosecution and of the appellant.
Background
The incident giving rise to the charge occurred in the early hours of the morning of 25 September 2011 in the street outside a residence at Goode Road, Port Pirie. The residence was being used to host a party for a local hockey club which had been involved in three grand finals on the preceding day. There was a large group of people at the party which had commenced on the previous evening. The main prosecution witness, an off-duty police constable, Emma Nykiel, told the magistrate that she had been taking part in the party inside a shed when she heard banging, apparently on the outside of the shed. At that, she walked down the driveway and saw “several” people in the street fighting. She had proceeded down the driveway in company with some others, including Williams. She saw a man (Bowden) lying face down in the middle of the road. She saw Williams approach the figure and bend down next to him. She followed Williams to see to that person. She saw Williams crouched down and then saw the appellant run over to Williams, take hold of his shirt and drag him backwards. She related that the appellant then turned Williams around, grabbed him by the scruff of the neck and punched him once to the face. She then saw him throw Williams towards a car which was parked on the street next to the driveway; whereupon Williams’ head made contact with the corner of the car and a tyre and he landed face down on the ground. There was no contest that he lost consciousness. And he was not called at trial. Seeing this, Nykiel moved in closer to Williams to protect him, took out her telephone and rang the Port Pirie Police Station. As she was doing so she said she saw the appellant go on to hit two other people who had emerged from the party. She said he was adopting a boxer’s stance and that he came back to her position and yelled at her. She feared she would be hit.
Some other witnesses were called by the prosecution and in some small details they supported Nykiel’s evidence. It is unnecessary to relate anything of the evidence they gave.
The defence case, which comprised the appellant’s evidence alone, amounted to a quite different version of this event. The appellant did not suggest that he had not been correctly identified by Nykiel, but he denied punching Williams. The appellant said that he had arrived in Goode Road in company with some others and that some of the “young lads”, who were celebrating a football premiership, began banging on the shed. He said that resulted in a flood of people emerging from the party onto the driveway. He said “a bit of an altercation started”. Then a couple of fights broke out and he saw that his younger companions were getting the worst of it. He said that about 30 people from the party were involved in the fight and about 15 people from his group were involved. He said there was “wrestling and punching and people getting thrown around”. He said it was “a brawl” and “pretty scary”.
The appellant said that his involvement began as follows. He said one man (who on his account must have been Williams) was fighting with someone else and began to back into the appellant. At that, the appellant said he “sort of shoved him out of the way” or “sort of shoved him sideways”. He said he did that “reasonably hard”, “enough to get him out of my way”.He said: “I had nowhere else to go.” He said that next, the person he had earlier been fighting “chased him down”. Williams went down near to a car next to the driveway entrance. The appellant said he did not know what happened after that as he himself was punched from behind in the back of the head. He then wrestled with his assailant and was able to free himself. The appellant described a continuation of the brawling. He denied having punched anyone.
In cross-examination the appellant described the critical sequence of events again. He said that Williams was fighting with someone but was coming back towards the appellant. He said “[Williams] must have been backing away from that person and I’ve just got him out the way because he was going to step on me, walk into me … I had nowhere else to go, there were people around me. Otherwise he’d have walked on top of me.”
The magistrate found Nykiel to be “an impressive witness”. He described Nykiel’s evidence as being given in a “frank and direct manner”. He said she painted a “vivid picture” of what occurred. He found that her observations of the appellant approaching Williams and assaulting him were accurate and that Williams could not have been, and was not, presenting a threat to anyone as he went to Bowden’s assistance. He found that the witness had a clear view of the appellant’s actions in relation to Williams and also in relation to the two males whom he went on to hit.
As for the appellant, the magistrate described his evidence as “untruthful, unreliable and a fabrication”. He said the appellant had “manufactured a version of events that [is] untrue.” The magistrate said “He is a dangerous person. Much of his evidence was contrived and lacked reality, ie, it was made up”. The magistrate found that the appellant had used threatening and intimidating words and actions in relation to Nykiel and that she had been put in fear for her safety. He rejected all the evidence of the appellant relating to the way in which he made contact with Williams.
As well as the general findings to which I have adverted, the magistrate made specific findings about the way in which the events occurred and the activities of each participant.
Arguments on appeal
The first ground of appeal complains that, in assessing the appellant’s claim that he acted in self-defence, the magistrate failed to take into account the circumstances in which that claim was made. The appellant contends that, rather than considering the appellant’s claimed state of mind in the context of a dynamic and dangerous situation, marked by confusion and aggression, the magistrate undertook an assessment of the appellant’s conduct in isolation, divorced from the factual context in which it had occurred. Nykiel’s description of the appellant’s conduct was, it was argued, necessarily limited. The witness could not say whether the appellant had been punched immediately before his interaction with Williams. Nor could she view the entire incident through the appellant’s eyes inasmuch as it comprised a number of different confrontations, much aggression and wholesale confusion. The appellant’s counsel, Mr Allen, argued that even if the appellant’s denial of having punched Williams were rejected, the magistrate was obliged to go on and consider whether that punch might have been delivered for a defensive purpose, and was, according to the appellant, his swinging aside or shoving of Williams.
The second ground complained that the magistrate failed to adequately articulate what it was about Nykiel’s evidence which convinced him of its accuracy and what it was about the appellant’s evidence which caused him to reject it. This was not a case, counsel argued, where mere acceptance of Nykiel’s evidence necessitated the rejection of the appellant’s claim of having acted to defend himself.
Analysis
I consider that the first task facing the magistrate was to consider on all the evidence what, if any, physical contact there had been between the appellant and Williams and whether he was satisfied beyond reasonable doubt of the version of events attested to by Nykiel. This, the magistrate did. He made clear findings to the effect that he accepted Nykiel’s evidence and rejected that of the appellant. He found that Williams was crouched over the prostrate figure on the ground intent on rendering assistance and was approached from behind by the appellant, pulled by his clothing, punched in the face and thrown onto the nearby motor vehicle. Having made that finding, the question then arose whether the violence towards Williams was unlawful.
During the appeal hearing, I had the benefit of interesting exchanges with both counsel regarding the question whether, once the appellant’s version of the event was rejected, any claim of self-defence remained to be evaluated by the magistrate. The only assertion of acting in self-defence made by the appellant was in relation to his pulling or shoving of Williams. Mr Allen’s argument involved the contention that even if the appellant’s version as to the nature of the force he exerted upon Williams were rejected, the magistrate still had to consider the appellant’s claim of self-defence in relation to the violence that was found to be proved, namely the punch and throwing onto the motor car.
Doubtless there are some cases where, while the full thrust of a defendant’s evidence will not be accepted, the entirety of the defence will not fall along with rejection of some of the factual detail in which it is embedded. I do not consider that this case is one of them. In my mind, rejection of the account by the appellant of the physical interaction with Williams carried with it the specific claim of self-defence that he made. In my opinion the rejection of the appellant’s account of events, in the circumstances of this case, carried with it the rejection of the appellant’s evidence that he acted in self-defence. It left the magistrate in much the same position as he would have been had the appellant not given evidence. That is, although the magistrate had to consider whether the element of unlawful violence was made out, he had no evidence in opposition to such a finding.
However, as Mr Grant for the respondent noted, even if the magistrate was not obliged to consider the evidence going to self-defence in relation to the punch and other violence which he had found the appellant to have delivered, the magistrate did in fact go on to make findings rejecting self-defence as a possibility. Towards the end of his reasons the magistrate said:
On all credible and sound evidence and my finding thereon Williams was never a threat, real or imaginary to [the appellant]. I further find that [the appellant] assaulting Williams could not be construed in any way as necessary or reasonable for a defensive purpose nor that [the appellant]’s actions in assaulting Williams were reasonably proportionate to any real or imaginary threat posed at any time by Williams attending to the needs of another person on the ground in the middle of Goode Road.
In my view it cannot be said that the magistrate divorced the evaluation of the appellant’s evidence from the factual matrix. On the evidence before him, which he accepted, the magistrate was clearly entitled to reject the appellant’s evidence that his actions were in self-defence; and the magistrate did so in clear terms.
I turn to the second ground of appeal.
It is unnecessary to undertake a discussion of the various cases regarding the obligations upon a judge or magistrate to provide adequate reasons for his or her decision. Many cases have addressed that issue and I was referred to some of them: for example, Papps v Police (2000) 77 SASR 210; R v Keyte (2000) 78 SASR 68; R v Power (2003) 141 A Crim R 203; R v Beard [2004] SASC 411. It is plain that the extent of the obligation varies with the nature of the case, the issue falling for determination and the nature of the evidence under consideration.
In my opinion the magistrate met the obligations upon him. Contrary to Mr Allen’s argument, I do not agree that the opposing versions of the incident had much in common. Certainly there was commonality as to the place of the incident and as to the persons involved in this particular confrontation, but beyond that, the accounts were entirely different. Acceptance of the evidence of one or other witness carried with it rejection of the other. In any event, this was not a case where the magistrate failed “in terms” to reject the appellant’s evidence; cf. Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34 at [3]. On the contrary, I have already set out the magistrate’s assessment of the appellant’s evidence as being untruthful, unreliable and a fabrication. He went on to say that it was contrived and lacked reality.
It is true, as Mr Allen argued, that the magistrate did not point to any internal inconsistencies in the appellant’s evidence, and he did not specifically refer to the appellant’s demeanour. However, it can probably be said that this was a case where the acceptance of Nykiel’s evidence and the rejection of the appellant’s was more a matter of impression made by them, rather than a matter of logic. As was observed in Power’s case at 345 and Beard’s case at [13], in such cases, it is not easy to see how a judge or magistrate might elaborate upon the reasons for decision. In fact, a close reading of the transcript of the evidence of Nykiel and the appellant demonstrates very clearly how the magistrate reached his decision. The appellant’s claim of self-defence was, in my view, weak indeed and his evidence reads poorly.
I do not consider that the criticisms of the magistrate’s reasons for decision are valid.
Conclusion
Neither ground of appeal is made out. The appeal must be dismissed.