Shaw v Mansell
[2012] WASC 451
•30 NOVEMBER 2012
SHAW -v- MANSELL [2012] WASC 451
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 451 | |
| Case No: | SJA:1067/2012 | 3 OCTOBER 2012 | |
| Coram: | HALL J | 30/11/12 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time granted Leave to appeal granted for grounds 1 and 2 and refused for ground 3 Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | PHILIP FRANCIS SHAW ELISSA CLAIRE MANSELL |
Catchwords: | Criminal law Appeal against conviction Assault and unlawful wounding Self defence Defence against a home invader Whether magistrate erred in his application of the law to the facts Whether the magistrate erred in his consideration of self defence Whether the magistrate erred in his consideration of when a person could be a home invader |
Legislation: | Nil |
Case References: | Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 Francis v Todd [2011] WASC 185 James v Sievwright [2002] WASCA 343 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
ELISSA CLAIRE MANSELL
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE S M WILSON
File No : PE 21353 of 2011, PE 21354 of 2011
Catchwords:
Criminal law - Appeal against conviction - Assault and unlawful wounding - Self defence - Defence against a home invader - Whether magistrate erred in his application of the law to the facts - Whether the magistrate erred in his consideration of self defence - Whether the magistrate erred in his consideration of when a person could be a home invader
(Page 2)
Legislation:
Nil
Result:
Extension of time granted
Leave to appeal granted for grounds 1 and 2 and refused for ground 3
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr L M Fox
Solicitors:
Appellant : Holgate Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Alford v Magee [1952] HCA 3; (1952) 85 CLR 437
Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434
Francis v Todd [2011] WASC 185
James v Sievwright [2002] WASCA 343
(Page 3)
- HALL J:
Introduction
1 On 26 February 2012 the appellant was convicted following a trial in the Magistrates Court of one count of aggravated unlawful assault, contrary to s 313(1)(a) of the Criminal Code (WA) and one count of aggravated unlawful wounding, contrary to s 301(1) of the Criminal Code. The circumstance of aggravation in each case was that a child was present at the time of the offence. The appellant was sentenced to 9 months' imprisonment for the assault and 15 months' imprisonment for the aggravated unlawful wounding, those terms to be served concurrently. He now seeks leave to appeal against the conviction.
2 The appellant was sentenced on 31 May 2012. Where a person is sentenced on a different date to that on which he or she is convicted, the time for commencing an appeal runs from the date of sentencing: s 10(4) Criminal Appeals Act 2004 (WA). Accordingly, the appellant had until 21 June 2012 to commence an appeal against his conviction. His appeal notice was filed on 3 July 2012. Accordingly, an extension of time is required.
3 In an affidavit filed with his notice of appeal the appellant stated that between 10 and 15 June 2012 he was in the Crisis Care Unit of Hakea Prison and was unable to access a computer to complete the appeal notice. He says that he was then in court on another matter between 18 and 20 June 2012 and this also prevented him from completing the appeal notice. Taking these matters into account and bearing in mind that the delay is less than two weeks, I consider that it is appropriate to grant an extension of time.
Grounds of appeal
4 The appellant drafted the grounds of appeal himself. Prior to the hearing of the appeal he obtained legal representation. The original grounds of appeal were then abandoned and leave was sought to substitute amended grounds of appeal. The amended grounds of appeal allege that the magistrate made errors in the way he dealt with self-defence and defence against a home invader. The amended grounds are as follows:
1. The learned Magistrate erred in fact and law in the way he dealt with the defence of self-defence under section s248 of the Criminal Code.
(Page 4)
- 1.1 There is no requirement in the belief in section 248(4)(a) be a 'reasonable belief'.
1.2 It was open to the learned Magistrate to find the complainant's trespass on the proper conveyed an intention, either expressly or impliedly, he intended to do a harmful act to the appellant;
1.3 As required by Section 248(4)(c), the learned Magistrate failed to find there were no 'reasonable grounds' for the belief; (reasons pp38-39).
2. The learned Magistrate erred in law in failing to determine whether the prosecution had proved beyond reasonable doubt that the appellant's 'harmful act' was not a reasonable response in the circumstances as the appellant believed them to be.
Particulars:
- 2.1 The learned Magistrate conflated sections 248(4)(a) & (b);
2.2 In doing that, he failed to find the appellant didn't believe 'the act is necessary' and, separately, that there were no reasonable grounds for those beliefs;
2.3 The learned Magistrate found that the complainant's act 'could not create any reasonable belief by the accused';
2.4 In reaching that conclusion the learned Magistrate did not expressly, or impliedly, determine whether the appellant's act was a reasonable response in the circumstances as the appellant believed them to be;
2.5 His Honour failed to find the appellant had no belief he was about to be attacked;
2.6 His Honour failed to find that although the appellant had a belief he was about to be attacked, his response in hitting the complainant with a cricket bat and biting his ear was, in the circumstances of the appellant's belief, unreasonable.
3. The learned Magistrate erred in fact and law in the way he dealt with the 'defence against home invasion' under Section 244 of the Criminal Code;
(Page 5)
- 3.1 The complainant's trespass on the appellant's property, that included going around to the back of the house, was evidence capable of conveying to the appellant a belief the complainant intended to commit an offence;
3.2 The definition of an 'associated place' under Section 244(6)(a) of the Criminal Code includes the complainant being on the appellant's property;
3.3 It was open to the learned Magistrate to find that the 'wrongful entry' by the complainant upon the appellant's property provided a reasonable ground for the appellant's belief that the complainant intended to commit an offence.
5 The amended grounds do not expressly challenge the findings of fact made by the magistrate. On the hearing of the appeal I sought to clarify with the appellant's counsel whether any such challenge was made. The following exchange occurred:
HALL J: I'm sorry, are you saying that the findings of fact the magistrate made were wrong or that embracing those findings, they don't support the conclusion that the magistrate came to?
WATTERS, MR: Yes. What we say is it is open to find in the circumstances that the complainant going around to the back of the house in the manner that he did, given that earlier incident that I have taken your Honour to, was sufficient to ground a belief on the part of the appellant that the complainant was intending to commit a harmful act.
HALL J: When you say 'it's open to find,' do you mean by that that effectively it is not open for the magistrate to find that that element of self-defence had been excluded beyond reasonable doubt?
WATTERS, MR: Yes.
HALL J: Because on the evidence the magistrate's findings were sufficient to leave open that possibility?
WATTERS, MR: Yes (ts 11 - 12).
6 In these circumstances it is apparent that the appellant is arguing that the magistrate erred in his application of the law to the facts as he found them to be. Whether an error of law occurred needs to be considered in the context of those findings of fact.
(Page 6)
The Prosecution case
7 The prosecution case was that the offences had occurred at about 11.15 am on 3 April 2011 at the appellant's home in Dianella. At that time the appellant was at home with his six-year-old son, J. Pursuant to Family Court custody arrangements, J was due to be handed over to his mother, Ms Lisa Thomas, at 11.15 am. Shortly before that time Ms Thomas attended the appellant's home in company with her neighbour, Mr Gavin Bracegirdle. It is Mr Bracegirdle who is the complainant in this matter.
8 The day prior to the incident Ms Thomas had received a telephone call from the appellant complaining that J had been talking to the appellant about Ms Thomas' boyfriend. The appellant was angry and agitated in this telephone call. This caused Ms Thomas to be anxious about the handover arrangements for the following day. Accordingly, on the morning of 3 April 2011 she spoke to the complainant and arranged for him to come with her for support.
9 On arrival at the appellant's home Ms Thomas spoke to the appellant at the front door of his house. He refused to handover J and Ms Thomas said that she would contact the police. When she returned to her car she told the complainant what had occurred. The complainant then got out of the car, approached the house and spoke to the appellant. He asked the appellant to hand J over without the need to involve the police. The appellant refused and the complainant then walked through a gate at the side of the house and entered the backyard. The complainant said he did this because he heard J call out that he wanted his mother and he was concerned for the child.
10 The prosecution case was that the appellant rushed out of a sliding door at the rear of the house, breaking a flyscreen door and striking the complainant in the middle of the back with a wooden cricket bat. The appellant then jumped onto the complainant's back and bit him on the left ear. A part of the complainant's left ear was bitten off before he was able to shake off the appellant and punch him to the right eye. The complainant then fled back to the front of the house where Ms Thomas called for the police and an ambulance.
11 The allegation of the striking of the complainant with the cricket bat was said to constitute the assault. The allegation of the biting off a portion of the left ear of the complainant was said to constitute the unlawful wounding charge. The prosecution alleged that J was present and observed the incident between the appellant and the complainant. His
(Page 7)
- presence constituted the circumstance of aggravation in respect of each offence.
The evidence
12 The prosecution called, amongst other witnesses, the complainant, Ms Thomas, Dr Dragojevic and J. Police witnesses were also called, however their evidence is not material for present purposes. The appellant gave evidence in his defence. I will summarise the evidence of the principle witnesses.
The complainant
13 The complainant gave evidence that he accompanied Ms Thomas at her request. He said that he stayed in the car when she went to the house to collect J. She returned and told him that there was trouble and the appellant would not give J back to her. He said that he told her to call the police. He said that he then got out of the car and walked towards the house as he was concerned about J's welfare. He said that as he approached the house he heard the appellant say, 'Oh here we go - fuck off'. He then saw the appellant push J back inside the house and slam the door.
14 The complainant tried to speak to the appellant through the front door. He told the appellant that he just wanted to take J home to his mother. He said there were noises inside the house but no response. He said he called out to the appellant to just give J back before the police got involved. He said that he then heard J say that he wanted to go home with his mother.
15 The complainant said that he then opened a gate and walked down the side of the house to the backyard with the intention of seeing if J was all right. He said he could see J through the glass window and called out to him. He then saw the appellant walk in front of J and come back with a cricket bat in his hand. The appellant then opened the door and threw back the flyscreen door. He said that the appellant moved menacingly towards him.
16 The complainant said he put his hands up and moved backwards and said to the appellant that this did not have to happen and that he had come to take J to his mother. He said that the appellant responded by saying, 'Like fuck you are' and started to swing the cricket bat at him. The complainant turned his back and crouched. He started to move away and continued to tell the appellant that this did not have to happen. The
(Page 8)
- appellant continued to approach and the complainant covered his head, crouched and turned and was hit on the back. He saw the cricket bat fall to the ground and the appellant then jumped on him. He then felt a pain to his left ear and hands around his neck.
17 The complainant said he turned and got his hands underneath the appellant and pushed him off. This caused the complainant to fall on his right knee. He then realised he had blood flowing down his face. The appellant came at him again but he pushed him away and punched him causing the appellant to fall over. He then ran to the front of the house and saw Ms Thomas near her car. He was holding his ear and brushing blood away.
Dr Franco Dragojevic
18 The complainant later attended at the Joondalup Health Campus where he was examined by Dr Franco Dragojevic. Dr Dragojevic gave evidence that a significant part of the complainant's left ear was missing. There were also abrasions on his left elbow and marks and bruising on his right knee. The complainant also had a large red swollen mark on his back.
J (the child)
19 J gave evidence that when his mother and the complainant attended to collect him the appellant slammed the front door. He said he told the appellant that he wanted to go with his mother. Following this the appellant said in a loud voice that the complainant was going around the back. He described the appellant's face at this time as angry. He was told by the appellant to go to his bedroom which he did. However, he came out and saw what then transpired.
20 J saw the appellant go to the playroom and get a cricket bat, open the back door and smash down the flyscreen door. He then saw the appellant jump on the complainant's back and bite his ear. He also referred to the appellant hitting the complainant with the cricket bat.
Lisa Thomas
21 Ms Thomas also gave evidence that she remained at the front of the house and did not see the events that occurred in the back yard. She did see the complainant walk to the front of the house and say words to the effect, 'Come on Phil, we're here to get [J]. We don't want trouble and we don't need to involve the police. Just hand [J] over'.
(Page 9)
22 Ms Thomas then saw the complainant walking around the side of the house. She was talking to the police on the telephone but could hear the voice of the complainant say, 'Why did you do that for?' She said the complainant was around the back of the house for about 30 seconds. She then saw him come running back with blood running down the side of his face.
The appellant
23 The appellant's version of what occurred was significantly different to that of the complainant and J. He said that he refused to hand J over because Ms Thomas arrived too early. He said that he heard the complainant moving around the side of the house and went to lock all the doors. He said that when he arrived at the back door the complainant was already trying to make his way in. He said the complainant was half way in and half way out of the door.
24 The appellant said he charged at the complainant, pushing him backwards out of the door causing them both to fall to the ground coming to rest against a patio post. He denied having or using a cricket bat during the incident. He said that he was crouched over the top of the complainant and got up and attempted to run back into the house. However, he said that the complainant grabbed him, pulled him back to the ground and onto his back, straddled him and began to punch him to the head.
25 The appellant said he was punched four or five times and in trying to resist the blows, pulled the complainant towards him and bit at him. He said that when he bit the complainant he was being beaten and was seeing stars. He said that he had no option other than to do what he did as he thought he was going to be killed by the complainant.
The magistrate's reasons
26 In his reasons for decision the magistrate summarised the evidence in detail and then made findings of fact. In doing so he accepted the evidence of the complainant, J and Lisa Thomas. He gave extensive reasons as to why he accepted that evidence.
27 The magistrate did not accept the evidence of the appellant. In this connection, the magistrate said:
I do not accept the evidence of the accused. I found his evidence to be evasive, conveniently forgetful, delivered in a manner aimed at minimising his conduct and intended to blame others for what occurred ...
(Page 10)
- I do not accept the accused's version of the events of what occurred on the back patio of his home. I do not accept the accused's accusations that Mr Bracegirdle attempted to enter the home of the accused. I accept the version of events described by Mr Bracegirdle. I accept the accused's behaviour at the front of his house after the incident towards Mr Bracegirdle and Ms Thomas was as described by Ms Thomas and Mr Bracegirdle. The accused was red face[d], enraged, angry and very abusive towards Mr Bracegirdle and Ms Thomas (ts 35 - 36, 27/1/12).
28 The magistrate then made the following findings of fact:
1. On 2nd April 2011, the Accused telephoned Ms Thomas and ranted and raved at her over [J] discussing with him her new boyfriend and the time he spends with [J].
2. On 3rd April 2011, before going to Church the Accused drove [J] around various streets asking him to identify the home of Ms Thomas's boyfriend.
3. A few minutes before 11.15 am on 3rd April 2011, Ms Thomas and her neighbour Mr Bracegirdle arrived at the home of the home of the Accused to collect [J] in accordance with Family Court orders. The Accused told Ms Thomas 'you are early, fuck off, go and fuck your boyfriend.' Ms Thomas advised the Accused she would call the police, returned to her car and did so.
4. On being told by Ms Thomas that the Accused would not return [J], Mr Bracegirdle took it upon himself to leave the car of Ms Thomas and knock on the front door of the home of the Accused and yell out to the Accused on a number of occasions to the effect that they had come to collect [J] and asked the Accused to return [J] to his mother without the need to involve the police. The Accused told Mr Bracegirdle to fuck off. Mr Bracegirdle could hear [J] crying and asked the Accused to go with his mother.
5. The words spoken by the Accused to Ms Thomas and Mr Bracegirdle were done so in the presence of [J].
6. The Accused then came to the front of the house and abused Mr Bracegirdle and Ms Thomas before going back into the house with [J] and locking the door.
7. Mr Bracegirdle without instruction from Ms Thomas then went to the rear yard of the home of the Accused with the intentions of seeing that [J] was alright and calling to him to come out of the house so he could be returned to his mother.
8. At the rear of the house of the Accused, Mr Bracegirdle yelled out to [J] to come to him and he would take him to his mother. [J] did not reply.
(Page 11)
- 9. The Accused then appeared at the rear door near the games room and flung the fly screen door open causing it to come off its track and fall to the ground. The Accused was brandishing and waving from side to side a full size adult cricket bat and rushed at Mr Bracegirdle. Mr Bracegirdle told the Accused on several occasion his conduct was not necessary and he only wanted to return [J] to his mother.
10. The Accused ignored Mr Bracegirdle. Mr Bracegirdle turned to protect himself and was struck a forceful blow to the lower middle back with a cricket bat by the Accused leaving a horizontal mark across his back and inflicting instant pain. Mr Bracegirdle was felled to the ground by the blow from the Accused.
11. The blow delivered by the Accused to the back of Mr Bracegirdle is an assault within the meaning of the Criminal Code.
12. As a result of the blow to the back of Mr Bracegirdle by the Accused the cricket bat fell from the hands of the Accused and the Accused then leapt towards Mr Bracegirdle putting his hand around his neck. The Accused then bit the left ear of Mr Bracegirdle with sufficient force that portion of the lower part of the left ear was bitten off.
13. The biting off of portion of the left ear of Mr Bracegirdle by the Accused amounts to a wounding within the meaning of the Criminal Code.
14. Mr Bracegirdle managed to remove the Accused from him by throwing him off him and he then fled to the front of the house where he joined Ms Thomas. Police were called by both the Accused and Ms Thomas. The content of the phone calls by the Accused to police were not wholly correct and were designed to paint a picture other than what had occurred.
15. At the time of the occurrence of both of these offences, [J] was standing inside the home of the Accused, looking out through the rear doorway from the games room onto the rear patio of the home of the Accused. [J] saw both the assault with the cricket bat and the biting off of the ear of Mr Bracegirdle by the Accused.
16. The Accused after the incident in the backyard of his home came to the front of his house on several occasions and taunted and yelled abuse towards Ms Thomas and Mr Bracegirdle, on at least one occasion whilst [J] was with the Accused, as they waited for police to arrive.
17. Despite conducting a search of the home of the Accused some days after the incident police did not recover the full size adult cricket bat (ts 36 - 38, 27/1/12).
(Page 12)
29 The magistrate then turned to the law. Two issues had been raised in the proceedings, self-defence and defence against home invasion. The magistrate set out s 248 and s 244 of the Criminal Code. As regards self-defence, the magistrate said:
I do not accept the actions of Mr Bracegirdle as I found occurred could create any reasonable belief by the Accused that it was a reasonable response to protect himself or any other person from an imminent or otherwise harmful act by Mr Bracegirdle within the meaning of s 248 of the Criminal Code.
There is no evidence that Mr Bracegirdle proffered any act that is in the slightest a suggestion he was at the home of the Accused with the intention or otherwise to deliver a harmful act upon any person.
The evidence and findings of fact do not suggest Mr Bracegirdle did anything prior to the incident that would reasonably suggest he intended or would act or otherwise do anything to commit a harmful act on the Accused or [J]. In fact the evidence of Mr Bracegirdle was that he told the Accused on at least two occasions prior to being assaulted with the cricket bat that he did not come to cause trouble, violence was not necessary and he walked backwards from the Accused (ts 38 - 39, 27/1/12).
30 In regard to the defence against home invasion the magistrate said:
I find there is no reasonable ground for the Accused to believe that Mr Bracegirdle intended to commit an offence or was committing or had committed an offence within the place or associated place of the Accused other than the wrongful entry into the associated place of the Accused.
...
... The finding that Mr Bracegirdle did not [threaten] or otherwise proffer any violence towards the Accused or for that matter [J] and that Mr Bracegirdle clearly made it known why he was there renders any suggestion by the Accused he had reasonable grounds for believing Mr Bracegirdle intended to commit or was committing an offence without merit.
I do not accept the Accused's version of what he said occurred between the Accused and Mr Bracegirdle some 4 or 5 years earlier as the truth. ... I also do not accept the mere presence of Mr Bracegirdle at the home of the Accused was sufficient to create any reasonable belief the intentions of Mr Bracegirdle were to impose violence upon the Accused or that he intended to commit any offences upon the property of the Accused.
I have no difficulty in finding the Accused made up his mind not to return [J] to his mother in accordance with the Family Court orders before she arrived at his home to collect [J]. The Accused would have been well aware by the time the incident occurred on the back patio of his home that
(Page 13)
- the time he had to spend with [J] was over and he had to be returned to Ms Thomas. He chose not to return [J] to his mother in defiance of the Family Court orders. The Accused was well aware before Mr Bracegirdle went to the rear of the property that he sought to help Ms Thomas have [J] returned to her (ts 41 - 42, 27/1/12).
Grounds 1 and 2 - Self-defence
31 A harmful act is lawful if done in self-defence. Accordingly, if an offence includes as an element the committing of a harmful act, no offence will occur if the act was done in self-defence.
32 Where self-defence is raised it is necessary for the prosecution to exclude it beyond reasonable doubt. Thus, if the tribunal of fact is not satisfied beyond reasonable doubt that the harmful act was not done in self-defence the accused must be found not guilty.
33 Self-defence contains three components. It is sufficient if the prosecution establish that one or other of the components has been excluded beyond reasonable doubt. If one component is excluded to this standard then self-defence is not open.
34 The component parts of self-defence are set out in s 248(4) of the Criminal Code:
(4) A person’s harmful act is done in self defence if
(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b) the person’s harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
(Page 14)
36 It is important to place the magistrate's reasoning in respect of self-defence in the context of his Honour's findings of fact. It was not necessary for the magistrate to engage in an examination of legal principles in the abstract. His Honour was only required to identify the law that he applied in coming to his decision and the reasons for doing so: s 31(1)(b) Magistrates Court Act 2004. A magistrate need only refer to so much of the law as is necessary to dispose of the issues in the case. This is comparable to the position of a judge addressing a jury (as to which see Alford v Magee [1952] HCA 3; (1952) 85 CLR 437, 466).
37 No issue of self-defence was raised in respect of the assault charge. The appellant did not claim that he had used a cricket bat in self-defence; rather he denied that he had used a cricket bat at all. He was disbelieved in this regard and the evidence to the contrary was very strong. The magistrate did not specifically exclude consideration of self-defence in respect of the cricket bat assault and a defence must be considered if there is evidence which, taken at its highest in favour of the accused, could lead the finder of fact to have a reasonable doubt as to an element of the offence: Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434. Whilst I doubt that there was any such evidence in respect of the cricket bat assault, I will assume for the purposes of this appeal that there was and that the magistrate's reasons relate to both offences.
38 In regard to the unlawful wounding, the appellant claimed that he had bitten the complainant because he was being punched and feared for his life. It can be inferred from this that he was saying that he believed his act of biting the complainant was necessary to defend himself from the harmful act of being punched. However, the magistrate did not accept that the appellant was a truthful witness and, in particular, did not accept his account of the events of 3 April 2011. In making these findings it is clearly implicit that the magistrate did not accept that the appellant believed that his actions were necessary. Similarly, the magistrate's findings that the appellant was not a truthful witness regarding the circumstances of that day meant that any evidence which the appellant gave regarding his belief as to the circumstances at the relevant time was rejected.
39 The fact that an accused person says in evidence that he or she believed that his or her act was necessary, and that he or she also believed that the circumstances were such as to render the act objectively reasonable does not necessarily mean that the first two limbs of self-defence are established. It is always open to and indeed necessary for the tribunal of fact to consider the evidence in regard to those beliefs.
(Page 15)
- Almost inevitably that evidence will come from the accused by way of things said in or out of court. But the fact that a person says to the police, or in evidence, that they had these beliefs does not mean that they actually held them unless that evidence is ultimately accepted. In this case the accused's evidence as to his belief was not accepted. In those circumstances, there being no other direct evidence to support the existence of the relevant beliefs, it is unsurprising that the magistrate did not specifically address the first two limbs of s 248(4).
40 What the magistrate did do was consider whether the evidence that he accepted excluded self-defence. Again this necessarily takes into account both his Honour's factual findings and his Honour's findings with regard to the credibility of the witnesses. His Honour considered whether there were any reasonable grounds for the appellant to have believed that his act was necessary or to have believed that the circumstances were such as to make his act reasonable. If the magistrate was satisfied beyond reasonable doubt that no such reasonable grounds existed then the third limb of self-defence was negated. That was sufficient to exclude self-defence in its entirety.
41 In my view, when properly understood, the magistrate's reasons were clearly addressing the objective facts as he found them to be to determine whether there were any reasonable grounds upon which a belief as to the necessity of the act of biting and as to the circumstances could be based. The reasons were clearly addressing s 248(4)(c).
42 Whilst the words 'reasonable grounds' were not used, that is the implication of the magistrate referring to the facts as he found them to be and concluding that those facts could not 'create any reasonable belief by the accused that it was a reasonable response to protect himself or any other person from an imminent or otherwise harmful act by Mr Bracegirdle'. In referring to 'reasonable belief' the magistrate meant that there were no reasonable grounds for the appellant to believe his act was necessary or to believe that the circumstances were such as to make his response a reasonable one.
43 The words used by the magistrate only appear to conflate the different limbs of self-defence if they are taken out of context. Whilst it may have been preferable for the magistrate to use the precise words of s 248, his meaning should not be determined by extracting a phrase and viewing it in isolation. When the reasons as a whole are read the criticisms made by the appellant fall away.
(Page 16)
44 The magistrate said that the findings of fact did not suggest that the complainant did anything that would reasonably suggest that he intended to commit a harmful act. He noted that the complainant had told the appellant on two occasions prior to being assaulted that he did not come to cause trouble and that violence was not necessary and that he had walked away from the appellant. In referring to these matters, the magistrate was giving consideration to whether there were any reasonable grounds upon which the relevant beliefs of the appellant could be based. He concluded that there was no reasonable basis for such beliefs. That conclusion was open on his findings.
45 The appellant placed reliance upon Francis v Todd [2011] WASC 185 and in particular the failure identified in that case to appreciate that s 248(4)(b) contained both objective and subjective components and that any reasonable response in respect of that sub-section needed to be considered in the circumstances as the appellant believed them to be. However, in that case the magistrate's finding that the appellant held no reasonable belief that he would be harmed by the complainant was doubted because it was based upon CCTV footage which was unclear, and the magistrate had failed to give proper consideration to other evidence.
46 In Francis v Todd there was evidence that was capable of supporting self-defence. That evidence was not rejected by the magistrate in that case. Accordingly, there was some evidence which could support the existence of beliefs as to the necessity of the act done by the appellant in and as to the circumstances. In that case, therefore, it was important that the evidence of those beliefs be assessed against the requirements of each limb of self-defence.
47 But this case is different. Here, while there was evidence from the appellant that he had a reasonable belief that he would be further harmed by the complainant if he did not commit the act of biting and there was some evidence that four or five years previously there had been a verbal altercation between the two men, there is no suggestion that that evidence was not properly considered by the magistrate. Nor is it suggested that the magistrate's findings were not properly open to him.
48 It is true that the assessment required by s 248(4)(b) is whether the response of the appellant was reasonable in the circumstances as he believed them to be. However, the belief as to those circumstances must itself be based upon reasonable grounds. Self-defence could be excluded in a number of ways. It would be excluded if it was concluded that the appellant did not believe that his act was necessary to defend himself from
(Page 17)
- a harmful act. It would be excluded if the appellant's act was not a reasonable response in the circumstances as he believed them to be. It would be excluded if the belief as to the necessity of the act was not based on reasonable grounds. It would be excluded if the belief as to the circumstances was not based on reasonable grounds. Section 248(4)(c) conditions the beliefs in both (a) and (b); that is, both the belief as to necessity and the belief as to the circumstances must be based on reasonable grounds.
49 In this case, that means that on the findings made by the magistrate the appellant must demonstrate that it was open for the appellant to believe that it was necessary for him to bite the complainant to defend himself from harm, that the act of biting was a reasonable response in the circumstances as the appellant believed them to be and that his beliefs as to the necessity of the act and as to the circumstances were based on reasonable grounds. A great deal of time and effort could have been taken applying the evidence to each of the component parts of self-defence but this effort was entirely unnecessary if it was clear on the evidence that at least one of those component parts was excluded. The order in which he considered this issues is immaterial.
50 In this case the magistrate could have concluded that any one of the three components was excluded. Having decided that the appellant was not a witness of the truth he understandably put aside that evidence and considered the question of whether there were reasonable grounds for a belief that the act of biting was necessary or that the circumstances were such as to make the response a reasonable one.
51 The magistrate's conclusion, when understood in context, was that there were no reasonable grounds for a belief that the circumstances were such as to make the act of biting a reasonable response. That was a conclusion that flowed inevitably from the findings of fact that the magistrate made.
52 The particulars to grounds 1 and 2 assume that it was necessary for the magistrate to specifically and separately address each of the limbs of self-defence. That assumption is incorrect. It was not necessary for the magistrate to undertake such an exercise in circumstances where he was satisfied beyond reasonable doubt that one of those limbs, namely s 248(4)(c), was excluded beyond reasonable doubt.
53 In the event that I am wrong and the magistrate erred in that his reasons should be read as referring to s 248(4)(b) and that he erred by
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- failing to appreciate that that limb was partly subjective, it is necessary to consider whether no substantial miscarriage of justice occurred: s 14 Criminal Appeals Act.
54 On the facts as found by the magistrate there was no verbal or physical threat made by the complainant. The only facts that the appellant points to as being a basis for a belief on the part of the appellant that the complainant intended him harm is the act of trespass and a past verbal altercation. In the circumstances, those facts could not result in the relevant belief. Furthermore, when viewed in the context of the other facts the act of trespass could not possibly provide reasonable grounds for believing that the assault on the complainant was necessary. That is so even taking into account the prior verbal altercation. No other conclusion is reasonably open. Accordingly, even if the magistrate erred, no miscarriage of justice has occurred.
55 Given that the interpretation of the magistrate's reasons in regard to self-defence has required detailed consideration I will grant leave in respect of grounds 1 and 2, but, for the reasons I have given those grounds cannot succeed.
Ground 3 - Defence against a home invader
56 This ground asserts that the magistrate made an error in the way in which he dealt with the defence under s 244 of the Criminal Code. That section provides that in some circumstances it is lawful for a person who is in peaceable possession of a dwelling to use force against a home invader: See James v Sievwright [2002] WASCA 343.
57 Section 244 of the Criminal Code provides as follows:
Defence against home invasion
(1) It is lawful for a person (the occupant) who is in peaceable possession of a dwelling to use any force or do anything else that the occupant believes, on reasonable grounds, to be necessary -
(a) to prevent a home invader from wrongfully entering the dwelling or an associated place; or
(b) to cause a home invader who is wrongfully in the dwelling or on or in an associated place to leave the dwelling or place; or
(c) to make effectual defence against violence used or threatened in relation to a person by a home invader who is -
- (i) attempting to wrongfully enter the dwelling or an associated place; or
(ii) wrongfully in the dwelling or on or in an associated place;
or
- (d) to prevent a home invader from committing, or make a home invader stop committing, an offence in the dwelling or on or in an associated place.
- (1A) Despite subsection (1), it is not lawful for the occupant to use force that is intended, or that is likely, to cause death to a home invader unless the occupant believes, on reasonable grounds, that violence is being or is likely to be used or is threatened in relation to a person by a home invader.
(2) A person is a home invader for the purposes of subsection (1) if the occupant believes, on reasonable grounds, that the person -
(a) intends to commit an offence; or
(b) is committing or has committed an offence,
in the dwelling or on or in an associated place.
(3) The authorisation conferred by subsection (1)(a), (b) or (d) extends to a person assisting the occupant or acting by the occupant’s authority.
(4) If under subsection (1)(c) it is lawful for the occupant to use a degree of force, it is lawful for another person acting in good faith in aid of the occupant to use the same degree of force to defend the occupant.
(5) This section has effect even if the conduct it authorises would not otherwise be authorised under this Chapter.
(6) In this section -
associated place means -
(a) any place that is used exclusively in connection with, or for purposes ancillary to, the occupation of the dwelling; and
(b) if the dwelling is one of 2 or more dwellings in one building or group of buildings, a place that occupants of the dwellings use in common with one another;
- offence means an offence in addition to any wrongful entry;
place means any land, building or structure, or a part of any land, building or structure.
58 Section 244(2) has the effect that a person will be a home invader if the occupant believes on reasonable grounds that the person intends to, or is, committing an offence other than an offence of wrongful entry. Accordingly, mere trespass does not justify an act of violence against a person by an occupant pursuant to this provision.
59 The appellant submits that in the circumstances of this case it was reasonable for the appellant to believe that the complainant intended to assault him and forcibly remove J. It is submitted that this belief could be supported having regard not only to the act of trespass but that there had been a previous verbal altercation with the complainant and that on the present occasion the appellant had effectively told the complainant to go away.
60 It is plain from his reasons that the magistrate did consider whether the appellant had reasonable grounds for believing that the complainant intended to commit an offence of violence. He found that there was no reasonable grounds for such a belief and referred to the circumstances and to the previous verbal altercation. No error in this regard has been demonstrated.
61 There is a reference in the particulars to this ground to the definition of 'associated place' in s 244(6)(a). The reason for this seems to be that there is a suggestion that the magistrate erred in his consideration of the defence by excluding the defence on the basis that the place at which the incident occurred was not an associated place. On the facts, as the magistrate found them to be, the attack on the complainant occurred in the backyard. He rejected the appellant's suggestion that the attack had been commenced as the complainant was entering through the back door. Whether or not the backyard falls within the definition of 'associated place' within s 244(6) may well depends upon whether it is a place that is used exclusively or in connection with, or for purposes ancillary to, the occupation of a dwelling. It is arguable that the backyard did not fall within this definition, however that was not a consideration that bore upon the magistrate's decision. His conclusion that the defence was excluded because there were no reasonable grounds for the appellant to believe that the complainant intended to commit an offence at the place did not depend upon any question as to the nature of the backyard area.
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62 This ground is without merit.
Conclusion
63 For the above reasons, grounds 1 and 2 are reasonably arguable but ground 3 is not. Accordingly, the orders will be as follows:
1. the extension of time to appeal be granted;
2. leave to appeal in respect of grounds 1 and 2 be granted;
3. leave to appeal in respect of ground 3 be refused; and
4. the appeal be dismissed.
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