Terrence Ross Chivers v Police No. Scgrg-96-1858 Judgment No. 6174 Number of Pages 7 Criminal Law

[1997] SASC 6174

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

DOYLE CJ, DEBELLE AND LANDER JJ

Criminal law - appeal and new trial and inquiry after conviction - appeal and new trial - appeal against conviction after hearing before a Magistrate - whether the verdict of the Learned Magistrate was unsafe and unsatisfactory - abrogation of Magistrate's duty in allowing the complainant to decide which questions she was prepared to answer - Magistrate failed to address the appellant's defence - trial miscarried - conviction set aside and matter remitted to another Magistrate for retrial. Criminal Law Consolidation Act 1935s39(1); Magistrates Court Act 1991s42, referred to.

ADELAIDE, 6 May 1997 (hearing), 28 May 1997 (decision)

#DATE 28:5:1997

#ADD 4:6:1997

Appellant:

Counsel: Mr S H MacFarlane with Mr M R McKenney

Solicitors: McKenney & Co

Respondent:

Counsel: Ms J Cowdroy

Solicitors: Crown Solicitor (SA)

Order: appeal allowed.

DOYLE CJ

1. I agree that the appeal should be allowed, the conviction set aside and the matter remitted to another magistrate for retrial. I have nothing to add to the reasons given by Lander J, with which reasons I agree.

DEBELLE J

2. I agree with the reasons of Lander J and with the orders he proposes.

LANDER J

3. This is an appeal from a decision of a Magistrate given on 9 August 1996 where the appellant was found guilty of assaulting a family member contrary to s39(1) of the Criminal Law Consolidation Act.

4. An appeal from a decision of a Magistrate lies under s42 of the Magistrates Court Act. Section 42(3) provides: "42(3) If an appeal to the Supreme Court arises from proceedings relating to a minor indictable offence, the appeal will be to the Full Court unless the appellant elects to have it heard by a single Judge, but, even though such an election is made, a Judge may refer the appeal to the Full Court." 5. Invariably an election is made by appellants to have appeals of this kind dealt with by a single judge. No election was made in this case and as a result the matter has proceeded, by virtue of the Act, directly to the Full Court.

6. Ordinarily, in my opinion, these matters ought to be considered by a single judge of this Court and it would be unfortunate if appeals of this kind, as a matter of practice, came directly to the Full Court. Whilst this matter is no doubt important to the parties, it is not a matter that warrants the attention of the Full Court. However as this matter is before this Court it must be dealt with.

7. The appellant was charged on information that on 19 November 1995, at Forest Range he assaulted a family member namely his wife Natalie Chivers. He pleaded not guilty but after a hearing the Magistrate found the offence made out and the charge proved.

8. The grounds of appeal are: "1. The guilty verdict for the charge of assault regarding the appellant is unsafe and unsatisfactory against the weight of the evidence details of which will be set out in his outline of argument as references to transcript.

2. The learned Presiding Magistrate erred in law in holding that that appellant's conduct constituted, in all the circumstances, an assault." 9. The appellant married his wife in 1993 and on 19 November 1995 was living with her. At that stage there was, to use his wife's expression, great disharmony in the house and Mrs Chivers had asked the appellant to leave the house. On that day he started to get together his belongings for the purpose of leaving. During the time he was packing she said he carried an axe handle with him and made comments which caused the complainant to feel threatened.

10. Later the complainant became angry with the appellant because he refused to "dish up" food for the complainant and their children. She said she had a sense of losing control. She picked up a chair but then put it down again but knocked his arm as she put the chair down. She said she took off and raced inside to get away from him. She said that he chased after her and that when they got to the laundry he forced her to the floor of the laundry by jumping on her and punching her to the head. She said as she lay on the ground she was punched to the head and face numerous times; about ten or fifteen times.

11. During this time he told her to "shut up" and if she still wanted to be alive in ten minutes to see her children to shut up. He hit her with a clenched fist causing bruises and bumps.

12. She said eventually she got him off her and he went outside. He took hold of the axe handle again and taunted her saying "I can get in any time I like".

13. On about two or three occasions he tried to force his way in the front door but after a while he disappeared.

14. The complainant sought medical treatment and the treating doctor was called. He saw her the day following the incident and said that her only injuries were an abrasion to the bridge of her nose and a very mild area of bruising to her left eye. He could find no other bruising and she was not complaining of any other injury.

15. It was put to Doctor Waters, and he agreed, that it was a possibility that the complainant's injuries were consistent with someone trying to restrain her and her flailing about and attempting to throw punches and an injury being caused at that time. The Doctor agreed that if she had been hit fifteen or sixteen times he would have expected further abrasions. His evidence was (AB 12): "Q Let me put this to you: suppose the person - well, let us just suppose that this particular patient was lying on the floor on her back with her assailant sitting on top of her, and he were to strike her a number of times with a clenched fist, 10 or 15 times indeed with a clenched fist, to the head and face; are these the injuries that you would expect.

A No.

Q Perhaps you could tell the court some of the kinds of injuries that you would expect from that.

A You'd expect far more extensive bruising, to the face, in any area on the face or head. If we're talking about he hit 15 or 16 times with a clenched fist, you might have further abrasions too.

Q You might well find some cuts.

A You may well do so.

Q Inside the mouth.

A You may well do so.

Q Cut lip.

A Certainly.

Q Not just a mild area of bruising to the eye, but a fair dinkum large dark area.

A I would think so.

Q Perhaps both eyes.

A Both eyes maybe.

Q Maybe a bloody nose as well.

A Certainly.

Q You'd probably expect to see a few lumps around the head, wouldn't you.

A Certainly." 16. He was then asked: "Q So I take it then that you fully examined her, consistent with what she said had happened to her.

A Yes.

Q So would you have satisfied yourself that she had no cuts in her mouth or to her lip.

A Yes.

Q Or lumps on her head.

A Yes." 17. In cross examination the complainant objected to answering a number of questions. The learned Magistrate said this about her in his judgment: (AB 93) "Mrs Chivers gave her evidence in a resolute, confident, consistent and credible way. From time to time in the course of cross examination, she made her own rulings as to relevance, with support from the complainant (sic) on only one occasion. That indicated not evasion or dishonesty, but rather rejection of what she saw as an attempt by the defendant to deny his own violence by blaming her for it." 18. Whilst the Learned Magistrate had the advantage of seeing Mrs Chivers, his account of her objections is somewhat charitable to her and I think, with respect, not appropriate. No witness is entitled to rule on the questions asked of him or her. That is the duty of the Magistrate. It was not appropriate to allow the complainant to decide which questions she was prepared to answer. It is not only an abrogation of the Magistrate's duty, but in addition a failure to require a witness to answer relevant questions may lead the opposing party to believe that the Magistrate is not impartial.

19. The complainant made a number of objections to the questions which were asked of her which were clearly relevant to the appellant's defence. She was also argumentative and to a certain extent non responsive in her replies particularly when the appellant was trying to establish in cross examination that it was Mrs Chivers who had been guilty of acts of violence and that during that day she was angry and in a rage on a number of occasions.

20. In due course she agreed, for example, that she pulled the telephone off the wall whilst her husband was using it and she physically prevented him from reconnecting the phone. Her evidence in relation to that episode reads unsatisfactorily. She objected to answering questions and it appears from the cross examination that in a statement she made to the Police she misled the Police in relation to that episode.

21. The cross examiner then attempted to question the complainant in relation to the matters immediately preceding the events on the laundry floor.

22. It was put to her that she had picked up a metal outdoor chair and thrown it at the appellant and that the chair struck him on the right arm. She admitted that she had picked up the chair but she would not admit to throwing it, although she was prepared to concede the chair knocked his arm as she put it back down again. It was also put to her that she fell in the laundry and she answered: (AB 53) "And isn't that a typical domestic violence type reaction from the man? That's a cliché. I did not fall. I have walked into that house a hundred million times using that step." 23. It was then put to her that after she had stumbled and fell that her husband grabbed her by her wrists and sat on her and held her down for a few minutes while she screamed and flailed about until she finally calmed down a bit.

24. Effectively it was put to her in cross examination that the appellant had done what he had in protection of himself and for the purpose of restraining her whilst she was suffering from uncontrollable rage.

25. The appellant's evidence was that his wife was prone to anger but he was quite calm in reaction to events.

26. He described earlier incidents of rage on the part of his wife and in particular to her pulling the phone off the wall. In relation to the events immediately prior to the laundry episode he said that he served his own food and took the place out the back of the house to eat it. He said that her two children were then sent out to him and they said to him: "Mum said for us to eat off your plate."

27. She followed the children and said: "I told them to eat off your plate since you didn't serve them dinner."

28. His evidence was that she then picked up the chair and threw it at him. The chair hit him on the right side of his right arm and then bounced off to the ground. He said he was frightened because she appeared to be in a rage at the time. He said he put his meal down on the chair on which he had been sitting and got up as his wife ran off into the house. His purpose was to try and calm her down a little because he was frightened of what she might do next. He was concerned that she would come back with a rolling pin or a knife or something of that kind. He therefore chased her and whilst chasing her she fell over onto the laundry floor. He said that he then sat on top of her during which time she was throwing her arms around. At the same time he did his best to grab hold of her wrists to stop himself being attacked. He managed to get hold of each of her wrists with his hands and he held her arms down to stop her from doing what she was doing. Specifically he denied punching her in the head and face or anything of that kind. He held her down until she stopped struggling and appeared calm enough that further restraint was unnecessary. He sat on her holding her wrists for about two or three minutes.

29. He denied brandishing an axe handle at any stage during the day, although he admitted that he may have earlier handled the axe handle.

30. In cross examination he described himself as a peaceful person but his wife as a person who tended to be angry a lot of the time.

31. In relation to the chair throwing incident he said that he believed she needed restraining because he was concerned not only for the safety of himself but also for her two children. He therefore restrained her by sitting astride of her in the manner he described. When she calmed down he got off and went back outside and resumed having his dinner.

32. He conceded that she may have been telling him to let her go. She threw punches at him but he was unable to remember if any connected.

33. The Learned Magistrate gave very short reasons. I have already described his assessment of Mrs Chivers' evidence. After making that assessment he set out in very brief form the respective accounts of Mrs Chivers and the appellant. In describing the appellant's account the Learned Magistrate recognised that the appellant bore no onus of proof.

34. He discussed Doctor Waters' evidence and said this: (AB 95) "Doctor Waters saw Mrs Chivers the following day and reported 'Physically, her only injuries were an abrasion to the bridge of her nose and a very mild area of bruising to her left eye. I could find or see no other bruising. She was not complaining of any other injury.' If Mrs Chivers had been punched at least 10, as many as 15, times to the face and head, the physical damage observed by Doctor Waters the following day would have been more obvious and more severe. The medical evidence is inconsistent with and incompatible with a finding that the defendant punched Mrs Chivers between 10 and 15 times to the face." 35. I agree with that finding which, in my opinion on the evidence to which I have already referred, was inevitable.

36. However the Learned Magistrate went on: (AB 95) "But, overall, the evidence is not inconsistent with or incompatible with proof that she was assaulted. Once on the laundry floor, however she came to be there, the defendant sat on top of her. Is it lawful to use one's force and weight to sit on top of someone pinning them to the concrete floor of the laundry? Well, yes, in some cases it may be, if it is thought necessary to do that to defend oneself or to defend another, but, at its highest from the defendant's point of view he was not defending himself or defending another. His action in using his weight and force to pin his wife to the laundry floor was not a defensive action, it was subjugation by the use of force and was, in itself, assault. To that extent, I find the charge proved." 37. His Honour therefore has found that an assault occurred but only in the limited sense to which he referred. That assault was the application of force by the appellant in sitting on his wife's body and restraining her during the period that she was on the laundry floor.

38. There was no doubt that there was such an application of force, indeed that was the appellant's evidence. The appellant's case was not that he had not used force but was that he had used that force in defence of himself and his wife's children. A person is not guilty of an assault by using force against another person if the first person genuinely believes that the force being applied was necessary and reasonable to defend himself or herself or to defend another person. The onus was therefore upon the Crown to establish beyond reasonable doubt that the appellant had not acted in self defence.

39. I do not believe the Learned Magistrate properly directed himself in relation to where the onus of proof lay and whether it had been discharged. It was necessary for a resolution of this matter to determine whether the prosecution had proved beyond reasonable doubt that the appellant did not genuinely believe that the force he applied was reasonable to defend himself or his wife's children. To that extent it was necessary to determine whether the appellant's chasing his wife into the laundry and sitting astride her were overt acts consistent with the belief he claimed to have or whether those acts were not done in self defence. The Learned Magistrate did not address those matters. To that extent he did not address the appellant's defence. The appellant's own assertion that he did what he did for the purpose of defending himself and his wife's children was left unresolved.

40. The failure to address the appellant's defence necessarily means that the trial miscarried. It is not possible for this Court to determine whether the prosecution discharged its obligation to prove that the appellant did not act in self defence because this Court has not had the advantage of seeing the witnesses.

41. I believe that the conviction ought to be set aside and the matter remitted to another Magistrate for retrial.