SUTTON v POLICE - [2010] SASC 294

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SUTTON v POLICE
[2010] SASC 294
Judgment of The Honourable Justice White
22 October 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DEFENCE OF PERSONS OR PROPERTY - DEFENCE OF ANOTHER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CONSENT
The appellant was found guilty in the Magistrates Court of assaulting the complainant during a football match - the appellant contended that the verdict was unsafe and unsatisfactory; that the Magistrate had failed to apply correctly the law in relation to the defence of defending another; and that the Magistrate had incorrectly applied the burden of proof.
Held: appeal dismissed - the Magistrate had not erred in his treatment of the evidence, nor had he erred in his application of the law, or the burden of proof.
Criminal Law Consolidation Act 1935 (SA) s 15, s 20; Magistrates Court Act 1991 (SA) s 42, referred to.
Taylor v Hayes (1990) 53 SASR 282; Martin v The Department of Transport, Energy and Infrastructure [2010] SASC 141, considered.

SUTTON v POLICE
[2010] SASC 294
Magistrates Appeal

WHITE J. On 13 June 2009, the Happy Valley Football Club played the Aldinga Sharks Football Club at the Happy Valley ground. The appellant played for the Happy Valley “B” Grade team and Mr Scarf for the Aldinga Sharks “B” Grade team.
During the last quarter of the “B” Grade match, the appellant twice punched Mr Scarf to the head. Those punches resulted in serious injuries to Mr Scarf, including a fracture of the right orbital socket, which necessitated surgical treatment.
The appellant was charged with assaulting Mr Scarf, thereby causing him harm.[1] At the trial, the appellant acknowledged that he had punched Mr Scarf. He contended, however, that by participating in the game of football, Mr Scarf had impliedly consented to his application of force or, in the alternative, that the incident in which the blows were inflicted was a consensual fight. The appellant’s alternative submission at trial was that at the time of the incident with Mr Scarf, he (the appellant) was acting in defence of a team mate. This meant that the prosecution had to exclude the reasonable possibility that he was acting in defence of another.
[1] Criminal Law Consolidation Act 1935 (SA) (CLCA) s 20(4).
The Magistrate rejected the defences of consent and defence of another. He found the charge proved.
The appellant now appeals against that verdict.
On the appeal, the appellant did not dispute the Magistrate’s conclusions regarding consent. Instead, the appellant contended that the Magistrate had made errors in his findings of fact, that the Magistrate had erred by failing to find that it was at least reasonably possible that he had been acting in defence of his team mate, and that the Magistrate had inappropriately reversed the onus of proof on one issue.
Factual Background
The prosecution led evidence at the trial from the two field umpires in charge of the game, from Mr Robins (the coach of the Aldinga Sharks “B” Grade team), from Mr Tinsley (an Aldinga Sharks “B” Grade player) and from Mr Scarf. The appellant gave evidence himself but called no other oral evidence. The appellant did, however, tender a DVD containing video footage of most of the incident in which Mr Scarf was struck. This video footage was apparently taken by some person associated with the Happy Valley Football Club who was in the habit of filming most games. The taking of the video footage was not proved formally, but it was accepted at trial that it was footage of the incident in question. Ultimately the Magistrate’s findings of fact were made substantially by reference to what was disclosed on the DVD.
The Magistrate was satisfied that each of the prosecution witnesses had given his evidence honestly. However, none had seen the video footage before giving evidence, and their accounts differed (in some cases markedly) from what was depicted on the DVD. By the end of the trial, both the prosecution and the defence cases rested substantially, although not entirely, on what was depicted in the video.
The video showed play in the few minutes before the appellant punched Mr Scarf and also showed the aftermath of the incident. The appellant wore Happy Valley jumper No 22 and a Mr Bruce, Happy Valley jumper No 16. Mr Scarf wore Aldinga Sharks’ jumper No 19 and Mr Rhodes, Aldinga Sharks’ jumper No 21. Immediately before the incident occurred, the video shows the appellant receiving a handball; Mr Rhodes about to tackle him; and the appellant handballing to Happy Valley player No 2, who then kicked a goal. As the appellant disposed of the ball, Mr Rhodes tackled him, by grabbing hold of his jumper. A scuffle then ensued between the appellant and Mr Rhodes, but only some of this scuffle was filmed, as the camera followed the flight of the ball through the goalposts, before returning to film the scuffle.
The Magistrate summarised the incident in the following paragraphs:
[22]Immediately before the incident, player number three for Happy Valley handballs the football to [the appellant] who in turn handballs off to his number two team-mate who then kicks a goal. As [the appellant] disposes of the ball he is pushed in the back by Mr Rhodes who grabs [the appellant] by his guernsey. As the camera pans up to follow the football through the goalposts, [the appellant] punches Mr Rhodes once or perhaps twice. Mr Rhodes attempts to defend himself possibly by punching or attempting to punch [the appellant].
[23]By the time the camera pans back to the incident, Mr Scarf has entered the fray and has his left arm around [the appellant’s] neck. Mr Rhodes is attempting to assist Mr Scarf. Mr Scarf pulls [the appellant] forwards and downwards and Mr Rhodes is able to take hold of the back of [the appellant’s] guernsey. Mr Scarf continues to wrestle with [the appellant] with his left arm around [the appellant’s] neck and his right hand holding [the appellant’s] guernsey dropping down onto his right knee as he does so. [The appellant] pulls free from Mr Scarf as player number sixteen for Happy Valley enters the fray delivering a right-handed punch to Mr Rhodes. As this is occurring, Mr Scarf gets up and runs at player number sixteen placing his left arm around his neck. [The appellant] then breaks free and delivers two forceful punches to Mr Scarf, the first to the back of his head and the second punch to the right-hand side of his face. Mr Scarf falls to the ground, and [the appellant] is surrounded by players from both teams and retreats from the scene of the incident.
The Magistrate rejected the submission of defence counsel that Mr Scarf had deliberately given false testimony. He said:
[12]Mr Anders described Mr Scarf’s conduct as violent and aggressive. I do not accept that characterisation of Mr Scarf’s behaviour. Mr Scarf was acting defensively to assist his team mate. He did little more [than] tackle the players from the other team in a way sanctioned by the rules when an opposing player has the ball. True, the tackles were high, but they were reasonably safe. Mr Scarf was desperately grabbing [the appellant] and his friend to pull them off Mr Rhodes. He had to take hold of whatever parts of their person he was able to reach. It may have been that he failed to distinguish between [the appellant] and his team mate when he grabbed number sixteen for Happy Valley, or it may be that he was so agitated that his perception of events was badly limited. Having regard to the significant limitations of the evidence given by the two umpires and the fact that Mr Scarf was probably concussed in consequence of [the appellant’s] blows, I am unsurprised by the inaccuracies in his evidence. Those inaccuracies do not justify the conclusion that Mr Scarf was being untruthful.
The Magistrate accepted Mr Scarf’s evidence that the incident arose out of the scuffle between the appellant and Mr Rhodes, and that the appellant had punched Mr Rhodes. Based on Mr Scarf’s evidence and on the video footage, the Magistrate was satisfied beyond reasonable doubt that the appellant had, with his left fist, punched Mr Rhodes to the face. The Magistrate also specifically rejected the appellant’s evidence that he had not punched Mr Rhodes and rejected his evidence that he (the appellant) had been punched by Mr Scarf.
Ground 1: Was the Verdict Unsafe and Unsatisfactory?
The appellant recognised that a complaint that a verdict is unsafe and unsatisfactory is really inapplicable to appeals such as the present which are made under s 42 of the Magistrates Court Act 1991 (SA).[2] He accepted that this Court is required to conduct a real review of the evidence, albeit making due allowance for the advantage which the Magistrate had in seeing and hearing the evidence being given.[3] It is not just a matter of this Court considering whether the Magistrate could, on the evidence before him, have reached the decision which he did.
[2] Taylor v Hayes (1990) 53 SASR 282 at 291-2; Martin v The Department of Transport, Energy and Infrastructure [2010] SASC 141.
[3] Ibid.
This Court’s review of the evidence in the present case is made easier because of the video footage. However, the appellant also submitted that the inconsistencies between the account of the incident given by Mr Scarf in his evidence, on the one hand, and the events depicted in the video footage, on the other, meant that it had been inappropriate for the Magistrate to act on his evidence in any respect at all.
The appellant contended that the Magistrate’s findings of fact involved two errors. First, he contended that the Magistrate had been wrong to find beyond reasonable doubt that he (the appellant) had punched Mr Rhodes. Secondly, he contended that the Magistrate had been wrong to find beyond reasonable doubt that Mr Scarf had not punched him. Instead the Magistrate should have found that Mr Scarf had punched him at least twice. The submission was that if the Magistrate had made the correct findings on these factual matters, his assessment of the appellant’s state of mind in relation to the issue of defence of Mr Bruce must have been different.
Did the Appellant Punch Mr Rhodes?
In considering the appellant’s contention that the Magistrate’s finding that he had punched Mr Rhodes was erroneous, I have viewed the video footage many times. In particular, at the appellant’s suggestion, I have viewed the video footage frame by frame several times.
As previously indicated, the video footage of the scuffle between the appellant and Mr Rhodes is not complete because, for a few seconds, the camera followed the flight of the football, rather than staying on the scuffle. However, the video does show the appellant receiving the football and handballing it to the Happy Valley No 2 player. As he does so, he is tackled by Mr Rhodes, who grabs the back of his jumper. Although there is only partial footage of the next second or so, the video shows a movement by the appellant which is consistent with him having directed a punch or at least his open hand to Mr Rhodes’ face. This punch or slap appears to have missed Mr Rhodes, who has swayed backwards. However, the appellant’s left arm then extends to Mr Rhodes’ face, followed by the appellant’s right arm in an apparent one-two punching action. Mr Rhodes’ head moves in a way which is consistent with him having been punched.
In other words, although the quality of the video footage means that one cannot be absolutely certain that each one of the appellant’s actions just described was a punch, it does suggest very strongly, in my opinion, that that is what they were. Accordingly I consider that there is a reliable foundation for the Magistrate’s finding that the appellant had punched Mr Rhodes with his left fist.
In addition, the Magistrate had Mr Scarf’s evidence. As previously indicated, the Magistrate was satisfied that Mr Scarf was an honest witness. However, in my opinion, it was not appropriate for the Magistrate to attach very much weight at all to Mr Scarf’s account of the physical exchange between the appellant and Mr Rhodes. Mr Scarf’s account of his own actions, given initially without him having first seen the video, was contradicted by the video. Contrary to Mr Scarf’s evidence, he had in his own interaction with the appellant gone beyond simply trying to restrain the appellant; he had done more than simply grab the appellant by his jumper; he had grabbed the appellant in a headlock; he had tried to pull the appellant to the ground; and he had grappled with Mr Bruce as well as with the appellant. In my opinion, the marked differences between Mr Scarf’s account of his conduct, on the one hand, and his actions as depicted in the video, on the other, undermined substantially the reliability of his evidence concerning the whole of the incident. This includes his evidence of the interaction between Mr Rhodes and the appellant. The Magistrate recognised that Mr Scarf’s evidence had been shown to be unreliable and, accordingly, he was prepared to use it only for limited purposes.[4]
[4] Magistrate’s reasons at [13].
I consider that Mr Scarf’s evidence that the appellant had thrown one punch which Mr Rhodes had avoided, and then another punch which connected, is consistent with what is shown in the video. However, given the unreliability of Mr Scarf’s evidence more generally I do not consider that it should have been used for any additional probative purpose.
Nevertheless, for the reasons given earlier, I do not consider that the Magistrate’s finding of fact that the appellant punched Mr Rhodes to the face was wrong. On the contrary, the video footage indicates the appropriateness of this finding.
Did Mr Scarf Punch the Appellant?
The appellant gave evidence that Mr Scarf had punched him at least twice before his punching of Mr Scarf.[5] He claimed that the video confirmed that Mr Scarf had punched him twice (and possibly three times) before he punched Mr Scarf, and that the Magistrate had been wrong to reject his evidence to that effect.
[5] T 95/23.
I have viewed the video film several times with this submission in mind. I have been unable to see any confirmation in the video of the appellant’s claim. Mr Scarf’s actions in the scuffle principally comprised the placing of a headlock, or an attempted headlock, on the appellant, with an associated attempt to pull him to the ground. There were no punches. There is one occasion on which Mr Scarf’s right arm extends to the appellant’s face, but it is clear enough that he had an open hand when doing so. Further, there is no movement of the appellant’s head which may have indicated that he took a violent blow or blows to his face or head.
In these circumstances I consider that the Magistrate was correct to reject the appellant’s claim that he had been punched at all, let alone more than once, by Mr Scarf. As will be seen below, even if I had formed a different view of what Mr Scarf had done, it would not have altered my conclusion about the lack of reasonable proportionality in the appellant’s response.
In summary, I do not consider that the Magistrate’s factual findings involved the errors which the appellant imputed to him.
Defence of Another
The appellant contended that the Magistrate should have found that the prosecution had not excluded the possibility that he was acting in defence of Mr Bruce.
Section 15 of the CLCA provides (relevantly):
(1)     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. (Citations omitted)
…
(3)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.
…
(5)If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
…
As the appellant claimed that he was acting in defence of another, the prosecution had first to prove beyond reasonable doubt that he did not genuinely believe that his punching of Mr Scarf was necessary and reasonable for the defence of Mr Bruce. This required consideration of the appellant’s subjective belief.
If the prosecution did not exclude the possibility that the appellant genuinely believed that it was necessary to punch Mr Scarf in order to protect Mr Bruce, it had then to exclude as a reasonable possibility that the punching was, in the circumstances which the appellant genuinely believed them to be, reasonably proportionate to the threat to Mr Bruce which the appellant genuinely believed to exist. This required an objective appraisal of the proportionality of the appellant’s conduct, but that objective appraisal had to be made by reference to the circumstances which the appellant genuinely believed to exist. Further, as s 15B of the CLCA makes plain, the requirement for objective proportionality does not imply that the force used by the appellant could not exceed the force used or threatened against Mr Bruce.
The Appellant’s Subjective Belief
The appellant submitted that the Magistrate should not have rejected the possibility that he genuinely believed that it was necessary to punch Mr Scarf in order to defend Mr Bruce. His evidence at trial was that, immediately before punching Mr Scarf, he had thought that Mr Scarf was going to strike Mr Bruce. The Magistrate rejected that evidence.
As part of this submission, the appellant made a number of points. These included his claim that he himself had been struck by Mr Scarf, and that he had thought that Mr Scarf was about to do the same to Mr Bruce. The rejection of his evidence that he had been punched by Mr Scarf deprived this submission of much of its force, but as the appellant’s counsel pointed out, even if Mr Scarf had made contact with the appellant’s face with only an open hand, it was part of a threatening context in which the appellant made his assessment of what was reasonable and necessary.
Next, the appellant made the point that Mr Scarf was not known to him, and that there had been no previous history of antagonism between them (whether in the same match or on other occasions). Mr Scarf was, in this sense, an unknown quantity. The appellant was accordingly not to know how violent Mr Scarf could be.
Next, the appellant emphasised the brevity of the overall incident, which meant that he had only a very limited time in which to assess the situation. Further, on any view, there was a scuffle and scrimmage in which Mr Scarf in particular had attempted to take him (the appellant) in a headlock, and was attempting to do the same to Mr Bruce. Some defence of his team mate was appropriate, and given the norms of team behaviour on a football ground, to be expected. That being so, his assertions about his genuine belief should not have been rejected.
Next, the appellant referred to his conduct immediately after punching Mr Scarf. He had retreated from the place of the incident (albeit pursued by several Aldinga Sharks’ players) and had not attempted to prolong the incident. He had immediately complied with the umpire’s red card direction that he leave the field. All of this was consistent, it was said, with his having had a defensive purpose at the time of inflicting the punches.

These points are well made, but there are other considerations.
It is necessary to keep in mind that it is the reasonable possibility that the appellant may have genuinely believed that it was necessary and reasonable to punch Mr Scarf twice in order to defend Mr Bruce which had to be excluded by the prosecution, and not merely the possibility that he may have thought it necessary and reasonable to engage in some less extreme action by way of restraining Mr Scarf, or by way of remonstrating with him.
In that respect, the nature of Mr Scarf’s conduct as experienced or observed by the appellant is important. Mr Scarf had not punched the appellant, and he had not struck Mr Bruce. As the Magistrate pointed out, all he had done was engage in a form of wrestling or scragging by way of “strong remonstration”. If he had wished to strike the appellant or Mr Bruce, he had had the opportunity to do so, and he had not. Accordingly, there was no reason at all for the appellant to believe that Mr Scarf was about to strike Mr Bruce.
In addition, Mr Bruce was taller than Mr Scarf, and he also appeared to be more strongly built. Mr Bruce was managing quite satisfactorily the appellant’s attempts to put him in a headlock by the simple stratagem of keeping his arms high, thereby preventing Mr Scarf putting his arm around his neck. Without the appellant’s intervention, it is likely in these circumstances that the incident would have petered out, especially as an umpire was in the immediate vicinity and was commencing to exercise his control of the players.
The appellant himself appears to be bigger and more strongly built than Mr Scarf. It is difficult to understand therefore how he could have genuinely believed that the extreme action of violent punches to Mr Scarf’s face (at a time when Mr Scarf was not even looking at him) was necessary and reasonable for the defence of Mr Bruce. The assessment by the Magistrate of the appellant’s state of mind in the following passages was, in my opinion, appropriate:
[32][The appellant] punched Mr Scarf because he was excited and/or angry. He was demonstrating that he would not be intimidated. He wanted to forcefully impose himself on Mr Scarf and his team mates. It was not necessary to punch Mr Scarf at all and [the appellant] well realised this. He was acting as an aggressor.
In my opinion, this characterisation of the appellant’s state of mind was correct.
I accept that the appellant could genuinely have believed that some less extreme action was necessary and reasonable by way of defence of his team mate. However, in the circumstances of the incident, and in particular having regard to the nature of Mr Scarf’s conduct, the Magistrate’s conclusion that the appellant did not genuinely believe that it was necessary and reasonable to punch Mr Scarf violently to his face in order to protect Mr Bruce was, in my opinion, correct.
Reasonable Proportionality
The Magistrate said that even if the appellant had subjectively believed that punching Mr Scarf to the face was necessary and reasonable for a defensive purpose, he would have rejected, as a reasonable possibility, that the punching was reasonably proportionate to the threat as perceived by the appellant. The Magistrate said:
[35]…Mr Scarf was doing no more than wrestling with [the appellant] and Mr Bruce. [The appellant] had in fact managed to free himself, the umpire Mr Salt was immediately at hand, and other team mates of [the appellant’s] were rushing to the scene. Had [the appellant] needed to defend himself, that hypothetical need required no more than that he push or pull himself free from the grip of the players from the opposing team. Mr Bruce was being restrained at the time [the appellant] punched Mr Scarf, but was in no real need of assistance beyond [the appellant] pulling one of those holding him away. The two violent punches delivered by [the appellant] were completely disproportionate to the threat existing to Mr Bruce and [the appellant] as [the appellant] could have believed it to be. [The appellant] well knew he was surrounded by umpires and team mates as his subsequent speedy retreat demonstrates. He could and should have moderated his conduct well before that retreat.
I respectfully agree with this reasoning. The appellant’s punching of Mr Scarf was entirely out of proportion in the circumstances. It represented a considerable escalation of the force being used in the incident. Some pushing and pulling and scragging by way of a defence of a team mate, or by way of maintaining one’s position and “honour”, may have been acceptable. The violent punching of Mr Scarf to his face at a time when he was turned away from the appellant and could not have been aware of the imminent punches was, in my opinion, well beyond this kind of response. I agree with the Magistrate’s assessment that the appellant punched Mr Scarf in order to impose himself forcefully upon Mr Scarf and, by association, on the other members of the Aldinga Sharks team.
My assessment in this respect would be the same even if, contrary to the conclusion earlier expressed, Mr Scarf had punched the appellant. The two punches of the appellant were much more severe than anything Mr Scarf had done, or was threatening to do.
Accordingly, I agree with the Magistrate’s assessment that the appellant’s conduct was not reasonably proportionate to the threat which he may genuinely have believed to exist.
Reversal of the Onus of Proof
The appellant argued this ground only somewhat feintly.
In paragraph [12], I set out a passage from the Magistrate’s reasons concerning his assessment of the evidence of Mr Scarf. The Magistrate concluded that passage by saying that the identified inaccuracies in Mr Scarf’s evidence “do not justify the conclusion that Mr Scarf was being untruthful”.
The appellant focussed on that sentence, submitting that it indicated that the Magistrate had thought that it was necessary for him to prove that Mr Scarf was being untruthful. I reject that submission. The Magistrate was well aware that the prosecution had the onus of proof, and was well aware that the criminal onus applied. Other passages of the reasons make that plain. It is not readily to be supposed that the Magistrate would have made such a fundamental error in his assessment of Mr Scarf’s evidence which this submission imputes to him.
In my opinion, the impugned sentence is no more than a statement by the Magistrate that his consideration of each of the criticisms of Mr Scarf’s evidence made by the appellant did not lead him to conclude that Mr Scarf was being deliberately untruthful.
I reject this ground of appeal.
Conclusion
For the reasons given above, I dismiss the appeal.