Scholz v Police - [2013] SASC 94

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SCHOLZ v POLICE
[2013] SASC 94
Judgment of The Honourable Justice Gray
25 June 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - GENERALLY
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DEFENCE OF PERSONS OR PROPERTY - EXCESSIVE FORCE
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DEFENCE OF PERSONS OR PROPERTY - EVIDENCE
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
Appeal against conviction - defendant convicted following a trial in the Magistrates Court of assault causing harm contrary to section 20(4) of the Criminal Law Consolidation Act 1935 (SA) - alleged circumstance of aggravation as complainant was the former domestic partner of the defendant - defendant pleaded not guilty - defendant admitted to fracturing the arm of the complainant but alleged that he was acting in self-defence - Magistrate accepted that defendant was entitled to defend himself against complainant but concluded that the conduct of the defendant was not reasonably proportionate to the threat he genuinely believed to exist - Magistrate held that medical evidence established that defendant had used considerable force in twisting the complainant's arm - whether Magistrate erred in finding that excessive force had been used - whether Magistrate erred in finding that considerable force had been used.
Held: Appeal allowed - there was no evidence that considerable force had been used by the defendant - medical evidence did not establish that considerable force had been used - conviction recorded by Magistrate set aside - sentence imposed by Magistrate set aside - complaint dismissed.
Criminal Law Consolidation Act 1935 (SA) s 20(4), referred to.

SCHOLZ v POLICE
[2013] SASC 94
Magistrates Appeal: Criminal
GRAY J.

This is an appeal against conviction.
The defendant and appellant, Tyson Karl Scholz, was charged that on 13 March 2011, at Wudinna, he assaulted the complainant and caused her harm contrary to section 20(4) of the Criminal Law Consolidation Act 1935 (SA). It was alleged that there was a circumstance of aggravation in that the complainant was a former domestic partner of the defendant. Following a trial before a Magistrate, the defendant was found guilty of the offence as charged.
The prosecution led evidence from the complainant and from a general medical practitioner based in Wudinna. In addition, the prosecution also led affidavits from investigating police officers, photographs depicting injuries to the complainant, photographs depicting the scene of the incident and a video record of a police interview that the defendant had attended.
The defendant gave evidence in his defence.
It was the prosecution case that the complainant and the defendant had been in a domestic relationship for some time before the incident the subject of the charge. They also worked together in a business partnership in the shearing industry, the defendant as a shearer and the complainant as a wool classer. The domestic relationship had ended before the time of the incident, although there had been an intermittent relationship. The business partnership was ongoing.
On 13 March 2011, the day of the incident, the defendant and complainant went to the complainant’s home after completing a work assignment. On the long drive home from the work assignment, both the defendant and the complainant had consumed alcohol. At the time of the incident, both were affected to some degree by that consumption. The complainant saw that some of her property had been moved in her absence. She considered that the defendant’s family had been responsible. She took offence and was upset.
It was not in dispute that an altercation occurred between the defendant and the complainant. It was also accepted by the defendant that the complainant’s arm had been broken in the course of that altercation. The Magistrate summarised the evidence of the medical practitioner as follows:
He gave evidence that he examined the complainant at about 6.45pm on 13 March 2011. She reported that her right arm had been twisted by her partner and she heard a crack and it was painful. He examined her and she was unable to turn her arm over. An X-ray showed a spiral fracture of the distal neck of the ulna. He gave evidence that a spiral fracture is where the fracture line moves down the bone in a spiral. His evidence was that the bone had been broken by a twisting force. The injury was consistent with it occurring on that day – there were no signs of healing. A cast was applied to her right arm.
It was the complainant’s evidence that an argument started in relation to the defendant’s parents having gone through her possessions. She claimed that both she and the defendant were angry with each other. Her account was that the defendant picked up a bottle of the complainant’s “Bundy” from the car and raised the bottle at her. The defendant then grabbed the complainant around the neck and pushed her backwards. She fell onto a rocky area of the garden on her back. The defendant leaned over her, yelling that he was going to hit her with the bottle. On the complainant’s account, the defendant smashed the bottle close to her head and then went to walk away. The complainant stood up, approached the defendant from behind and went to slap him. The defendant turned around, grabbed her by her right arm, pushed her and twisted her right arm behind her back. She heard the arm crack and said, “you’ve broke my f’ing arm”. He let her go and said he was sorry. He offered to get ice. She told him to keep away and he left. She arranged to travel to Wudinna Hospital, where she received medical treatment. In cross-examination, the complainant denied that when she approached the defendant from behind she had hit him in the head with her fist and that she had moved to hit him again when he turned to face her.
The defendant was first interviewed by the police some three months after the incident. In the course of that interview, the defendant claimed that he had acted in self-defence. He said that the complainant had punched him several times to the head and that it was in his attempt to stop her and to subdue her that he had grabbed her arm and heard the crack. He informed the police that it was not the first time that the complainant had been violent towards him.
In evidence, the defendant explained that the complainant became irate as she had thought that her property had been interfered with. He said that the confrontation started when the complainant took the bottle of rum from the car and threw it at him. He said that the bottle hit the vehicle, causing a dent, but did not break. He picked the bottle up and moved to leave. The complainant approached him and attempted to take the bottle away from him. They struggled, and the complainant stumbled backwards and fell down into a rocky area of the garden. The defendant denied that he had grabbed the complainant by the throat.
The defendant started to walk away. The complainant shouted at him, and then approached him from behind and hit him to the back or side area of the head. Several blows were struck. He spun around to face her and she hit him again with a closed fist. The complainant was swinging violently. By this time they were face to face and the complainant rushed at him. Everything happened very fast. He tried to block the blow and grabbed her fist with his right hand. He also held her forearm with his left hand. He turned his body to the right and tried to push her away to deflect the blow. She tried to turn back, and swung her left arm towards him. He pushed her away and heard a crack. She screamed and said, “you’ve broken my arm”. He said he had felt sick and could not believe it had happened. She refused to let him help her and he left.
When cross-examined, the defendant denied that he had put his hand around the complainant’s neck in the early part of the altercation. He denied having smashed the bottle next to the complainant’s head. He maintained his account of all aspects of the altercation. He said that he had had no intention of hurting the complainant and that he was sorry that it had happened. He believed that he had acted reasonably and that his actions were all taken in an attempt to protect himself.
The Magistrate formed a favourable impression of the defendant. In that regard her Honour observed:
The defendant gave clear and frank evidence. He was a responsive witness. The evidence led in the defence case as to character was not the subject of challenge or contradiction. I am satisfied that it is proven the defendant is of good character.
However, her Honour observed:
The complainant gave detailed evidence. At times she had a heightened emotion when giving her evidence. She demonstrated an unresolved anger towards the defendant and in particular as to the way she perceived the defendant treated her as the relationship waxed and waned at the end of their time together. This led to some sarcasm in her response in cross-examination. Having said that, she was a responsive witness. Cross-examination did not greatly undermine her evidence.
The Magistrate made no express finding as to the credibility and reliability of the complainant.
The Magistrate made a specific finding that the complainant’s arm was broken as a consequence of an application of force by the defendant. In that regard, her Honour observed:
The defendant does not dispute he had contact with the complainant but disputes the background and extent of the contact. The defendant gave evidence that he grabbed the arm of the complainant. The medical evidence supports a finding that there was a twisting of the complainant’s arm and I am satisfied that did occur. I am satisfied that the defendant twisted the complainant’s arm. I am satisfied there was a direct application of force intentionally applied to the complainant by the defendant. That application of force was applied without the consent of the complainant. I am satisfied that as a consequence of that application of force by the defendant that the complainant’s arm broke. I am satisfied that harm was caused to the complainant.
The Magistrate then turned to consider the issue of self-defence. Her Honour correctly observed that the onus lay on the prosecution in respect of this defence. The Magistrate noted that the complainant and the defendant were similar in size and height, but that the defendant was stronger.
The Magistrate proceeded on the basis that the defendant was of the belief that he needed to defend himself at the time that he had made contact with the arm of the complainant. Her Honour then turned to consider whether the defendant’s conduct, in the circumstances as he genuinely believed them to be, was reasonably proportionate to the threat that the defendant genuinely believed to exist.
In regard to the early part of the altercation, the Magistrate concluded:
I am satisfied that there was interaction between the defendant and the complainant before the defendant walked towards the car. This included the complainant ending up on the ground, and hitting one of the large rocks on the garden border (seen in Exhibit D4). She sustained a significant injury to her buttock as a consequence (photograph 3 of Exhibit P3). The injury is not determinative of how the complainant came to fall on the rock. Based upon findings as to credit of the defendant, including his character, I do not reject the defendant’s account of events prior to him returning to the car, and I proceed on that basis.
Turning to the part of the altercation in which the complainant’s arm was broken, the Magistrate found that as the defendant was walking away, the complainant had approached the defendant in anger and struck out at him. Her Honour was satisfied that the complainant was “lashing out at the defendant” and was further satisfied that the defendant was entitled to fend off the complainant and to apply force to the complainant to do so.
The Magistrate was satisfied that the evidence established that the defendant had twisted the complainant’s lower right arm, leading to a spiral fracture of the arm. Her Honour made a specific finding that the complainant’s arm had been twisted using considerable force. Her Honour observed that the medical evidence was evidence of the amount of force used.
The Magistrate found that the defendant genuinely believed that the complainant was upset and was angry with him, and that she had come into contact with him and was threatening to do so again. However, her Honour considered that the defendant’s conduct was not reasonably proportionate to the threat that he had genuinely believed to exist. Her Honour found that the defendant had exceeded the force needed to defend himself in the circumstances. As a consequence, the defence of self-defence was rejected.
The Appeal
On the appeal, counsel for the defendant challenged the Magistrate’s finding that considerable force had been used. Counsel also challenged the Magistrate’s finding that excessive force had been used.
Attention was drawn to the evidence of the medical practitioner. In the course of evidence-in-chief, the practitioner did not express any opinion as to the amount of force required to cause the spiral fracture. It is readily apparent that sufficient force was applied to cause the spiral fracture and that there was a twisting of the arm. However, no attempt was made to quantify that force. The topic was not addressed in cross-examination. In these circumstances, the Magistrate’s finding that the medical evidence was evidence as to the amount of force used cannot be sustained. I assume that by this expression the Magistrate was suggesting that the medical evidence confirmed that considerable force was necessary to cause the fracture. There was no other evidence before the court to enable the amount of force applied to be quantified as considerable. The Magistrate did not make a finding that the complainant’s arm had been twisted behind her back. This assertion was not put to the defendant in cross-examination.
Having regard to the foregoing, it follows that the Magistrate’s conclusion concerning considerable force being used cannot be sustained. Without a finding on this topic, the Magistrate’s conclusion that the defendant’s conduct was not reasonably proportionate is flawed.
In the course of her reasons, the Magistrate said that she rejected “the defendant’s version of events that the complainant’s arm (or hand) was grabbed only”. The Magistrate continued that she was “satisfied that the evidence proves the defendant twisted the complainant’s lower right arm”. A review of the defendant’s evidence reveals that he did not specifically deny twisting the complainant’s lower right arm. His account was that when he turned to face the complainant, he held her right fist with his right hand in an attempt to defend himself. He said that, as she was punching him with her left fist, he held her right forearm with his left hand and turned his body to the right, pushing her away to avoid being struck. It is a reasonable possibility that such a circumstance could lead to a twisting of the complainant’s right arm.
The Magistrate did not make detailed findings as to the circumstances of the altercation. There is no suggestion in the reasons that the complainant’s account of her arm being twisted behind her back was accepted.
Having regard to the foregoing, I have reached the conclusion that the conviction should be set aside. The question then arises as to whether a retrial should be ordered. It is difficult as an appellate judge to be in a position to make findings without hearing the disputed evidence. However, the Court has a responsibility to, if possible, bring a summary proceeding to a conclusion. More than two years have passed since the incident. The defendant was convicted and released on a good behaviour bond and he has spent some months on that bond.
I discussed with counsel the order that should be made. Both agreed that having regard to all the circumstances, if I concluded that the conviction should be set aside, I should not order a retrial and should make no order as to the cost of the trial or the appeal.
Conclusion
The appeal is allowed. The conviction recorded by the Magistrate is set aside. The sentence imposed by the Magistrate is set aside. The complaint is dismissed. No orders are made as to the costs of the trial or the appeal.