Staehr v Police - [2007] SASC 383

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
STAEHR v POLICE
[2007] SASC 383
Judgment of The Honourable Justice Gray
1 November 2007
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE
Appeal against conviction - appellant found guilty by Magistrate of assault occasioning actual bodily harm and damaging property - defences of self-defence and defence of another raised at trial pursuant to section 15 of the Criminal Law Consolidation Act 1935 (SA) - appellant claimed that he acted for defensive purposes - prosecution tendered evidence of video footage of alleged offending at trial - whether the Magistrate did not properly or adequately direct himself as to the application of section 15 of the Criminal Law Consolidation Act 1935 - whether the Magistrate's findings were not supported by, or were against the weight of the evidence.
Held: Appeal dismissed - video footage directly refuted appellant's factual account of incident - video footage provided cogent and convincing evidence of appellant's guilt - not reasonably possible that appellant believed that his conduct was necessary for self-defence or in the defence of his partner - acts of appellant were not reasonably proportionate to any perceived threat - prosecution had proved beyond reasonable doubt at trial that appellant had not acted in self-defence.
R v Martin [2007] SASC 336; Police v Dorizzi (2002) 84 SASR 403; Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180, considered.

STAEHR v POLICE
[2007] SASC 383
Magistrates Appeal
GRAY J

This is an appeal against conviction.
The appellant, Robert Carl Staehr, was charged with the offences of assault occasioning actual bodily harm[1] and of damaging property.[2] Both offences were said to have taken place on 26 April 2006 at Kilburn. The appellant pleaded guilty to the charge of damaging property but not guilty to the charge of assault occasioning actual bodily harm.
[1] Pursuant to Criminal Law Consolidation Act 1935 (SA), section 40.
[2] Pursuant to Criminal Law Consolidation Act 1935 (SA), section 85(3).
The Trial
The trial of the charge of assault occasioning actual bodily harm came on for hearing before a magistrate. The prosecution presented the complainant, Helen Joy Stueve, and an investigating police officer. As part of the prosecution case, a video footage of the incident was tendered in evidence. The video footage had been recorded by an associate of the complainant. The appellant gave evidence and called his partner, Ms Smith. The Magistrate found the charge proved reasonable doubt and convicted the appellant.
The background to the incident was recounted by the Magistrate in the following terms:
The charges arose out of a set of incidents that occurred on 26 April 2006 at Cromwell Road, Kilburn. At the time the victim of the assault, Helen Stueve lived at 99 Cromwell Road, Kilburn and the [appellant] and his partner, Donna Smith lived almost directly opposite at 98 Cromwell Road, Kilburn.
They were known to each other for some time and it came out of evidence that Stueve had from time to time supplied or provided Smith with some of her prescription medication such as Zanex and others known as ‘Calmers’. Usually these transactions took place between Stueve and Smith, however, on the date in question Smith was very unwell and she sent her partner, [the appellant] across to Stueve’s house to get some drugs for her.
He obtained five or six tablets for which he handed over a $50 note. When he returned home to Smith, she expressed annoyance at the fact that Stueve had charged so much for so few tablets, and as Smith said in her evidence, she stated to her partner that they had been ‘ripped off’.
The [appellant] then returned to Stueve’s house in an attempt to retrieve some of that money and a verbal confrontation took place between the [appellant] and Stueve through the closed, front screen of the house. It was clear that Stueve was just inside the front door with her friend Kurt Gutsche (the owner of the motor vehicle parked on the front lawn, the subject of Count 2). Mr Gutsche captured some of the events that followed this confrontation on his video camera, which footage was tendered in evidence in court. The video footage shows the [appellant] approaching the front door of Stueve’s house very agitated, waving his arms about and obviously ‘mouthing-off’.
The events leading to the charge were then described by the Magistrate in the following terms:
The [appellant], in his evidence, said that there was a verbal confrontation with both parties exchanging words. He then left the front porch and started to walk away from the house and as he passed Mr Gutsche’s motor vehicle, he appears to strike down on the back windscreen with both hands. He was then seen walking around in the street, gesticulating and appeared very angry and agitated.
The [appellant] is seen in the video footage returning to the driveway of Stueve’s house and she came out the front door armed with a hammer in one hand and a steel implement in the other. This steel implement was described as a steel knife sharpener used by butchers.
Stueve said in evidence that her intention was to scare the defendant away and to try and protect her friend’s motor vehicle from further damage. The [appellant] again appeared agitated and aggressive, but it seems that on this occasion he retreated and went home.
Then it came out in evidence that Smith went over to Stueve’s house and an altercation occurred between them, when Stueve is alleged to have struck her on the head with a hammer causing her to bleed. Stueve denied having hit Smith, but rather, said that in the scuffle Smith is alleged to have tripped over the water meter and struck her head on the letterbox, thus injuring her head. Although in cross-examination, Stueve did not discount the possibility of having struck Smith with the hammer.
Whilst this was occurring, the [appellant] was informed that his partner, Smith had been attacked or was being attacked by Stueve, and he was captured on video approaching the front of Stueve’s premises.
The Magistrate then described what was depicted in the video of the incident giving rise to the charge:
The [appellant] set off in a very aggressive manner. Stueve was standing in her driveway behind Gutsche’s motor vehicle, still holding the hammer and the steel skewer in her hands. The [appellant] then appears to lunge at Stueve, striking her in the face, taking the hammer from her, kicking her several times to the legs and buttocks, knocking her to the ground. Smith was seen standing in the middle of the street when the [appellant] tangled with Stueve, and she then came over and tried to physically restrain and steer the [appellant] away from the front yard of Stueve’s house and into the street.
The [appellant] at this stage appeared very agitated and tried to push past Smith and move towards Stueve, again, who was on the ground at the time. He then took his rage out on Gutsche’s motor vehicle by smashing the rear windscreen and inflicting some other damage to the roof of the car.
The Magistrate observed:
It was common ground that the [appellant] struck Stueve, knocked her over to the ground and that as a result of the assault she sustained at least an injury to her left eye, which was corroborated by both police officers that had been tasked to the scene.
The issue at trial was whether the defence of self-defence had been excluded by the prosecution beyond reasonable doubt.
The legislative history of the enactment of section 15 of the Criminal Law Consolidation Act 1935 (SA) as a statutory form of self-defence, was discussed by this Court in R v Martin.[3] Section 15(1) of the Criminal Law Consolidation Act provides:
It is a defence to a charge of an offence if—
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b)the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
[3] R v Martin [2007] SASC 336 at [11].
By section 15(3) of the Criminal Law Consolidation Act, a defensive purpose includes an act in self-defence or in the defence of another:
For the purposes of this section, a person acts for a defensive purpose if the person acts—
(a) in self defence or in defence of another; or
(b) to prevent or terminate the unlawful imprisonment of himself, herself or another.
Although there are aspects of the complainant’s evidence that the Magistrate, having viewed the video, concluded were exaggerated, he made the following finding:
I accept that Stueve had asked the [appellant] to get off her property several times and that the police had been called. In spite of that, the [appellant] had returned to the vicinity of the front yard of Stueve’s house several times and had struck out in anger at Gutsche’s car, parked in the front yard.
The Magistrate expressed his conclusion in the following terms:
From a careful consideration of the evidence, the [appellant’s] actions did not constitute a reasonable response to the threats, which he believed he faced from Stueve.
In his ex tempore remarks, having expressed his conclusion, the Magistrate reasoned:
In this case, the [appellant] said that he came to the defence of his partner, Smith, who had been attacked by Stueve. However, the [appellant] did not see Stueve strike Smith and by the time he got to the scene of the confrontation between Smith and Stueve, the fighting was over, as Smith was seen walking away from Stueve’s house to the middle of the street. As the [appellant] made his way towards where Stueve was standing in her driveway with hammer and steel poker in hand, I did not see in the video clip, Stueve make any attempt to strike the [appellant].
The [appellant] could have turned and walked away. Instead, he chose to move towards Stueve and struck out, hitting her face then kicking her and knocking her to the ground. The [appellant] himself in cross-examination conceded that the force he used might have been excessive in the circumstances.
The Appeal
The primary complaint on appeal was that the Magistrate failed to properly assess the genuine belief held by the appellant about the need for the appellant to act in defence of his partner. As the Magistrate observed, an incident occurred that led Ms Smith into an altercation with Ms Stueve, which resulted in Ms Smith falling to the ground and either being struck by a hammer held by Ms Stueve or striking her head on am object on the ground. The appellant claimed that he had been informed of this by a third party and went to Ms Smith’s assistance.
Counsel for the appellant submitted that the appellant’s evidence gave rise to a reasonable doubt that he acted for a defensive purpose and that this defence had not been excluded beyond reasonable doubt by the prosecution. It was contended that on the evidence it was open to conclude that Ms Smith was in close proximity to Ms Stueve at the time the appellant approached her. It was said that the appellant’s object was to divert attention from Ms Smith to himself so that she could retreat to safety. It was suggested that the video of the incident failed to exclude the possibility that Ms Smith was still in proximity to the complainant at the time of the appellant’s approach.
This submission should be rejected. The video footage depicted the detail of the alleged offending. I have reviewed the footage a number of times. The following sequences appear:
-The appellant is first seen approaching Ms Stueve’s property from the road outside the property. Ms Smith is standing in between two men in the middle of the road facing Ms Stueve’s property.
-Ms Stueve then approaches the appellant from his left side, in front of a vehicle parked to the left of the driveway on Ms Stueve’s property. Ms Smith remains standing in the middle of the road with the two men.
-Ms Stueve then raises her right arm toward the appellant, and the appellant backs away slightly. Ms Smith is seen walking in the middle of the road with the two men, and travelling to the right of and away from the appellant.
-The appellant then raises his left arm and lunges toward Ms Stueve. At the same time, Ms Stueve raises her right arm to shield her face. Ms Smith is seen standing in the middle of the road with the two men.
-The appellant then seizes Ms Stueve by her shoulders, lunges toward her, and, with his right knee, strikes her in her groin. Ms Smith remains standing in the middle of the road with the two men.
-The appellant then seizes both of Ms Stueve’s arms and she pulls away. Ms Smith remains standing in the middle of the road with the two men.
-The appellant then kicks Ms Stueve twice with his right leg – once at shoulder height and once at hip height. Ms Smith is seen moving from the road toward Ms Stueve’s driveway, and approaches the appellant.
-The appellant then pushes Ms Stueve to the ground. She falls on her front and then rolls to her right side. She lands in close proximity to the right rear end of the vehicle. Ms Smith is seen on Ms Stueve’s driveway, behind the appellant and in close proximity to him.
-Ms Stueve then rolls onto her back. Ms Smith is seen standing on Ms Stueve’s driveway to the right side of the appellant.
-Ms Smith then raises both her arms toward the appellant and grabs hold of his right arm so as to restrain him. The appellant pulls away from Ms Smith.
-Ms Smith attempts to hold the appellant’s right arm again. He pushes away from Ms Smith.
-Ms Stueve then moves from her back to her knees. Ms Smith is seen standing at the rear of the vehicle, directly behind the appellant.
-The appellant then raises his right fist and hits the back of the vehicle. Ms Smith remains standing directly behind the appellant. Ms Stueve is seen standing to the right side of Ms Smith, in close proximity to her.
-The appellant then turns away from Ms Stueve and Ms Smith, and leaves the property. Ms Smith is seen facing away from Ms Stueve who is now standing behind her in close proximity to her.
-Ms Smith then walks away from Ms Stueve, with her back to her and exits the property.
This review of the video footage reveals that Ms Smith was not in the vicinity of Ms Stueve or her property at the time of the appellant’s altercation with Ms Stueve. The video footage directly refutes the factual account advanced by the appellant.
As observed in Police v Dorizzi,[4] video recordings have been accepted by the courts as real evidence of what is aurally and visually received on the playing of the tape. The rationale for the admissibility of this type of evidence was explained by the majority of the High Court in Butera v Director of Public Prosecutions (Vic)[5] in the following way:
The reason why a tape recording of a conversation is admitted in evidence to prove what is recorded is simply that use of the technology of sound recording and reproduction adds “to our knowledge other data not discernible by the unaided senses, or can make more accurate and more usable the data already discernible”. … Those additions to our knowledge, as Wigmore points out …, are due to the use of instruments constructed on knowledge of scientific laws. A tape recording may be used to produce a form of evidence which is different from both oral testimony and documentary evidence. The rules which govern the admission in evidence of tape recordings and the procedure to be followed by a court in ascertaining what is alleged to have been recorded on them must be moulded so as to deal with the technical and logical conditions which must be satisfied before a tape recording can furnish proof of what is recorded.
...
It is desirable to add, however, that the best evidence rule is not applicable to exclude evidence derived from tapes which are mechanically or electronically copied from an original tape. Provided the provenance of the original tape, the accuracy of the copying process and the provenance of the copy tape are satisfactorily proved, there is no reason why the copy tape should not be played over in court to produce admissible evidence of the conversation or sounds originally recorded. There is no reason to apply the best evidence rule to copy tapes.
And as Dawson J observed:[6]
Of course, some modes of proof are better than others, but that, save in the case of written documents, goes to weight rather than admissibility. Relevance is the ordinary test of admissibility, although in criminal cases the trial judge has a discretion to exclude relevant evidence if it operates unfairly against the accused as it does when its prejudicial effect outweighs its probative value or on grounds of public policy when it has been unlawfully or unfairly obtained. The production and playing of an original tape recording remains the best means of proof of its contents, at least where it is audible, intelligible and the words used are in the English language. Where it is inaudible or unintelligible, expert evidence of its contents may be required and it has been held that an ad hoc expertise may be acquired by a witness by playing and replaying a tape so as to become more familiar with its contents than could be done by playing it only once or twice: Hopes v Her Majesty's Advocate; see also Reg v Menzies. If a tape records a conversation which is not in English, then expert evidence in the form of a translation will be required. Even in these instances, although what was said cannot be proved merely by playing the tape in court, the original tape should be produced or its absence satisfactorily explained. Failure to do so may impugn the evidence given of the tape's contents and provoke, at the least, adverse comment."
[4]    Police v Dorizzi (2002) 84 SASR 403 at [35].
[5]    Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180 at 184, 186-187 (Mason CJ, Brennan and Deane JJ).
[6]    Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180 at 195 (footnotes omitted).
This case illustrates how video footage can provide cogent and convincing evidence to provide proof of an alleged offence. The appellant attacked Ms Stueve in circumstances where it was not a reasonable possibility that he genuinely believed that his conduct was necessary for self-defence or in the defence of Ms Smith. This finding was made beyond reasonable doubt by the Magistrate. It was the correct finding.
Even if it was possible that the appellant held a genuine belief that he needed to act for a defensive purpose, his acts were not reasonably proportionate to the threat that he believed to exist. Ms Smith’s safety would be secured by the appellant retreating from Ms Stueve’s property and joining her with her other male companions to return to his own home. Ms Smith was not under threat. Ms Smith was not in danger. It did not advance her defence in any way for the appellant to conduct himself in the manner disclosed in the video footage. The prosecution had proved beyond reasonable doubt that the appellant had not acted for defensive purposes.
For these reasons this appeal is dismissed.