Soppa v Chatterton

[1995] QCA 66

IN THE COURT OF APPEAL	[1995] QCA 066
SUPREME COURT OF QUEENSLAND

C.A. No. 499 of 1994.

Brisbane

[Soppa v. Chatterton]

DARREN JOHN SOPPA

v.

DIANNA VEE CHATTERTON

(Appellant)

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Pincus J.A.
McPherson J.A.

White J.

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Judgment delivered 15/03/1995

Judgment of the Court

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APPEAL AGAINST CONVICTION DISMISSED

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CATCHWORDS:  CRIMINAL LAW - conviction - aiding in self-defence - preventing a breach of the peace - whether reasonably necessary - whether reasonably proportioned - question of fact.

Ss. 260, 271, 272, 273 Criminal Code.

Counsel:Mr S Herbert Q.C. for the appellant.

Mr D Bullock for the respondent.

Solicitors:R J Webster for the appellant.

Director of Prosecutions for the respondent.

Hearing date:03/03/1995.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 15/03/1995

The appellant was found guilty in the Magistrates Court of having unlawfully assaulted one Petesfield, thereby doing him bodily harm. The assault consisted of pouring over Petesfield a mug of very hot water which caused burns depicted in photographs which we have seen; the appellant's purpose was to assist her de facto who was then fighting with Petesfield. No conviction was recorded, but the appellant was ordered to pay $1,200 compensation to Petesfield for his injuries. That is a lesser sanction than is prescribed in Deuteronomy Ch. 25 Verse 12.

The assault as described is not in issue, but the appellant's counsel submits that the appellant should have been found not guilty, on the ground that her actions were made lawful by s. 260 of the Criminal Code (preventing a breach of the peace) or s. 273 (aiding in self-defence). The magistrate rejected both of these defences.

His Worship set out his view of the facts in some detail and it seems desirable to summarise that. On 21 June 1993 a physical struggle began between Petesfield and Vandenberg in an office at which a business of marine brokerage was conducted. The appellant did not see how this began, the only evidence on that subject being that of Petesfield, who said that Vandenberg "shouldered into him". Vandenberg, described as being the "de facto husband and employer" of the appellant, was not called. Petesfield had hold of Vandenberg in the area of his head and neck and Vandenberg clutched those parts of Petesfield that he could reach; the two began what his Worship described as a "grotesque waltz" involving a "throwing by one or the other of each other around the room", bumping into furniture and into glass doors and, towards the end, some punching.

The people involved with the business conducted in the office had "lived in some state of consternation" with respect to Petesfield who, the magistrate (at least implicitly) found, had been involved in altercations, was prone to get into arguments and fights and had harsh words with people on a regular basis. The incident in issue stemmed from Petesfield's purchase of a boat through the office in question; Petesfield thought that he had been badly treated in relation to that transaction by Vandenberg and others. This led to civil proceedings and also, apparently, to the consequence that Petesfield kept a constant watch on the premises in question, interfered with the everyday business of the brokerage firm, accosted clients as they came and went, and exercised what the magistrate described as "some sort of reign of terror, perhaps" over people who worked there, and "some sort of standover tactic" over one of the employees, one Vitco. The magistrate referred to evidence of Petesfield and his de facto, Ms Hogget, that they had received an invitation from one Cooper, to go to the office on the day in question, and that Cooper denied that. Implicitly, again, the magistrate appeared to favour the view that Ms Hogget and Petesfield had been told they could visit the office on the afternoon in question, when there occurred "grappling and throwing around" by the two men. His Worship found that there were no breakages, the men did not fall to the floor but stayed on their feet until the very end when, according to the appellant, Vandenberg was on his knees. The magistrate said that over a period of three months there was a "litany of insult, abuse and vigilance" on the part of Petesfield towards people associated with the brokerage, stemming from Petesfield's dissatisfaction with his purchase, and that Petesfield made threats against those people but apparently made no move to harm physically any of them. Although, according to the magistrate's finding, Petesfield had used the words "I'll kill you. You're a dead man" and made other threats, he had done none of these things and, in the magistrate's opinion, the degree of violence between Petesfield and Vandenberg at relevant times was not enough for anyone to "reasonably assume that Vandenberg or Petesfield was in danger of death, or even grievous bodily harm".

The magistrate found that the appellant initially threw herself into the fray in defence of Vandenberg by attacking Petesfield's back and grabbing him by the singlet. She then picked up a chair and attacked Petesfield with that. The magistrate appeared to accept evidence that she hit Petesfield with the chair. Next, the appellant considered using a marble desk set as a weapon, but did not do so because of apprehension about the extent of the injury which might be caused to Petesfield, and decided to attack him with hot water. The magistrate found that "the use of the hot water was more than was reasonable in the circumstances" and was "disproportionate to the struggle that was going on between these two men". His Worship did not find that there were any "desperately serious assaults taking place", meaning that the struggle between the two men, the subject of the appellant's interventions, did not involve any such assaults.

Counsel for the appellant referred us to some parts of the evidence, but his fundamental argument was that, accepting the magistrate's findings, his Worship had made an error of judgment in arriving at the conclusion just stated. Counsel, as has been mentioned, relied on self-defence and in particular on s. 273 which reads as follows:

"In any case in which it is lawful for any person to use force of any degree for the purpose of defending himself or herself against an assault, it is unlawful for any other person acting in good faith in the first person's aid to use a like degree of force for the purpose of defending the first person."

It is unnecessary to set out the provisions - ss. 271 and 272 - to which s. 273 is complementary; it is enough to say that each makes it lawful for a person assaulted to use such force "as is reasonably necessary" or "necessary", depending on the nature of the assault being defended against, for various purposes set out in s. 271(1) and (2) and in s. 272(1). The magistrate does not in his reasons identify which of these provisions he had regard to, but assuming that he treated Petesfield as having assaulted Vandenberg without provocation - an assumption which may be rather too favourable to the appellant - the applicable provision would appear to be s. 271(1):

"When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm"

The other relevant provision is s. 260(1):

"It is lawful for any person who witnesses a breach of the peace to interfere to prevent the continuance or renewal of it, and to use such force as is reasonably necessary for such prevention and is reasonably proportioned to the danger to be apprehended from such continuance or renewal, and to detain any person who is committing or who is about to join in or to renew the breach of the peace for such time as may be reasonably necessary in order to give the person into the custody of a police officer"

By accepting, as he did, that the prosecution had negatived reasonableness, the magistrate must be taken to have found against the appellant on the question whether casting the hot water on Petesfield was reasonably necessary for preventing a breach of the peace and reasonably proportioned to the danger to be apprehended from the continuance of a breach of the peace, within the meaning of s. 260. It is not quite so clear what question of reasonableness was determined by the magistrate with respect to the self-defence issue, but the appellant makes no complaint about that lack of certainty in the reasons. The question is broadly speaking whether the magistrate's conclusion, to the effect that throwing the hot water on Petesfield was an excessive response to the struggle which was going on, can be supported.

To a considerable extent the magistrate's conclusion depended on his Worship's view as to the seriousness of that struggle. Some aspects of the evidence about it, to which the appellant's counsel drew our attention, would tend to make one think that it was an affair of such a kind as to make a reasonable by-stander apprehend disastrous consequences; reference has been made to the dire threats which came from Petesfield.

But the assessment of that was surely a question of fact and one of a kind in respect of which the magistrate possessed a substantial advantage over the judges of this Court, in having seen and heard the witnesses. It is, of course, trite law that factual findings based in whole or part on the Court's impressions of the witnesses will not lightly be set aside. Here, although much was said about the background to the altercation in which Petesfield and Vandenberg became engaged, it was the nature and seriousness of their struggle which was the critical point for the magistrate to consider. Counsel pointed out that the appellant's action had the desired effect of bringing the struggle to an end, but of course the fact that the intervention was effective does not necessarily require that the issues raised in the case be decided in favour of the intervener.

It must be said in favour of the appellant that, although the injury she caused to Petesfield was quite a significant one, there is nothing to suggest that any substantial injury of a permanent kind was done. But we are far from thinking that the magistrate's conclusion, given his basic findings, was not one which was open to him. The decision of a case of this sort requires careful attention to the evidence and the conclusions which properly follow from that evidence. We see nothing in the magistrate's reasons to suggest that his Worship misapprehended the character of the evidence presented, or made any other identifiable error. In the end, what the court below had to do was to reach a conclusion on an issue which was very much one of fact and of degree. There was plainly evidence giving reasonable support to the conclusion reached and the appeal must be dismissed.