Tomarchio v Pocock - [2002] WASCA 156

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: TOMARCHIO -v- POCOCK [2002] WASCA 156

CORAM: PULLIN J

HEARD: 9 APRIL 2002

DELIVERED : 13 JUNE 2002

FILE NO/S: SJA 1142 of 2001

BETWEEN: SALVATORE TOMARCHIO
Appellant
AND
LANCE JOHN POCOCK
Respondent

Catchwords:

Criminal law - Offence under Firearms Act of pointing firearm at person without lawful excuse

"Lawful excuse" meaning

Whether Criminal Code defences applied - Self defence - Preventing person from wrongfully entering a place - Preventing home invasion - Suppression of riot - Using force to prevent breach of peace

Whether new trial should be ordered

Legislation:

Criminal Code Act 1913, s 5

Criminal Code, s 7, s 31, s 36, s 62, s 237, s 238, s 244, s 248, s 250, s 254
Firearms Act, s 23
Interpretation Act 1984, s 32

Justices Act 1902, s 199

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant: Mr R K Williamson
Respondent: Ms L E Christian

Solicitors:

Appellant: Williamson & Co
Respondent: State Crown Solicitor

Case(s) referred to in judgment(s):

Boxer v The Queen (1995) 14 WAR 505
Bridge v Tozer [1978] WAR 177
Canale v Bayens [2001] WASCA 383
Crafter v Kelly [1941] SASR 237
Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45
Director of Public Prosecutions v Wille (1999) 47 NSWLR 255
Hancock v Birsa [1972] WAR 177
Hogermeer v Smyth, unreported; SCt of WA (Anderson J); Library No 970270; 27 May 1997
Ibbs v The Queen [2001] WASCA 129
Jenal v Milner (1994) 11 WAR 264
Jones v Metcalf [1979] 2 NSWLR 709
Lea v Gibson, unreported; SCt of WA (Rowland J); Library No 9058; 16 September 1991
Lewkowski v Lilley [2000] WASCA 14
Lotz v Bullock [1912] St R Qd 36
Nicholson v Avon [1991] 1 VR 212
Peacock v The King (1911) 13 CLR 619
R v Howe (1958) 100 CLR 448
R v Howell [1982] 1 QB 416
R v Mullen (1938) 59 CLR 124
Rabey v The Queen [1980] WAR 84
Renwick v Bell [2001] QCA 316
Soppa v Chatterton [1995] QCA 66
Taikato v The Queen (1996) 186 CLR 454
Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632
West Australian Newspapers Ltd v Bridge and Tozer (1979) 141 CLR 535
West v Suzuka [1964] WAR 112
White v Connolly [1927] St R Qd 75
Wilson v Dobra (1955) 57 WALR 95

Case(s) also cited:

Clemesha v The Queen [1978] WAR 193
Field v Metropolitan Police Receiver [1907] 2 KB 853
Garrett v Nicholson [1999] WASCA 32
Matsebula v Vandeklashorst [2000] WASCA 141
McGinty v Webb, unreported; FCt of WA; Library No 8606; 27 November 1990
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
Mraz v The Queen (1955) 93 CLR 493
R v Pickard [1959] Qd R 475
R v Storey (1978) 140 CLR 364
Roddan v Walker, unreported; SCt of WA; Library No 970252; 20 May 1997
Sun Securities Limited v National Companies and Securities Commission, unreported; FCt SCt of WA; Library No 8519; 28 September 1990
W Thomas & Co (WA) Ltd v Martin [1967] WAR 68
Webb v Allen, unreported; SCt of WA; Library No 7335; 31 October 1988
Wilde v The Queen (1988) 164 CLR 365
Zis v Bland [1962] WAR 137

PULLIN J: On 16 August 2001, Mr Wilson SM, in the Laverton Court of Petty Sessions, found the appellant guilty of pointing a firearm at Maxwell Edward Forrest on 24 February 2001 without lawful excuse, contrary to s 23(8) of the Firearms Act. The appellant appeals against that decision. Leave to appeal has been granted.

The Facts

The charge arises out of a disturbance which occurred at Laverton some time after 8.20 pm on the evening of 24 February 2001. The charge relates to the last incident in a series of incidents. The appellant is the owner of the Laverton Motel Chalets. He had been the owner for about six years before February 2001. One of the chalets was to be leased by a Mr Noden. He arrived at the motel chalets about 7.30 pm, along with his partner Tammy. They looked over the premises, and then Mr Noden and the appellant went to the front of the property and were conversing when an aboriginal youth was noticed by them about 26 metres away in the street. This youth was acting offensively by swearing, uttering profanities, and making threats. Rather than ignore this, the appellant and Mr Noden engaged in a verbal exchange with the youth. The appellant said that the words used by the youth were threatening and intimidating. The appellant was not, in fact, intimidated because he proceeded to question the youth, and when the youth ran away he was followed by the appellant and Mr Noden. The lacing of language with swear words seemed to be the order of the day in the dealings between the appellant and the youth.
The youth apparently changed his tone, feigning innocence about the incident and asking the appellant what the problem was. The appellant persisted in the interchange, and the youth then swung a bottle at the appellant. Mr Noden and the appellant then purported to make a citizen's arrest, and began walking the youth to the police station. The youth complained about the way he was being handled. The group reached the police station. There was a struggle, and eventually the youth escaped and ran away.
The youth reported the incident to friends or relations, and in due course aboriginal men and youths, numbering about 15 to 20, gathered outside the appellant's premises. They began swearing and threatening those inside. The appellant, Mr Noden, and the two women retreated inside the house. Rocks, concrete blocks, and beer cans were thrown. Two of these projectiles came through the window and struck the appellant, resulting in injuries of a superficial kind. There is no doubt that the appellant and Mr Noden, the appellant's wife and Mr Noden's partner, began to fear for their lives. Telephone calls were made by the appellant, requesting the urgent attendance of police at the premises to provide protection.
After some time, two policemen arrived outside the premises and tried to inform the appellant and the other three that they had arrived. They were not able to communicate this information to them because of the disturbance which was going on. The two police felt that they could not themselves control the situation. They called for reinforcements and gained authority to arm themselves, which they went off and did.
In the interim, Mr Noden armed himself with a shotgun he had in his vehicle. In fear of what might happen to the occupants of the premises, he fired a shot from the shotgun, which resulted in only a temporary dispersal of the crowd. The two policemen returned and began attempting to gain control of the situation.
The premises around which, and in which, these events occurred faced on to Cable Street and also onto a laneway. The incident which led to the charge against the appellant occurred near a fence which separated the building and its premises from the laneway. Five to eight men were outside the fence. These included Mr Forrest, the person mentioned in the complaint, and a Mr Stokes and a Mr O'Donoghue. Those three gave evidence, and none made any secret of the fact that they were shouting abuse, swearing, and making threatening comments.
I now turn to deal with the incident which led to the charge. In doing so, I will quote from the reasons of decision from the Magistrate. His findings of fact are not challenged. He said:
"It's the incident at the fence which we now must deal with.
The evidence of Mr Tomarchio is that there were a number of people who were at the fence. There was a lot of fighting and yelling and screaming going on over the fence. Mr Tomarchio gave evidence effectively that he was fearful for his life; that he was extremely concerned. I can understand that the situation which I think we've broken down into several incidents, but in particular the incident at the front of Cable Street was of huge concern to him, him having been struck.
I accept his evidence that he was struck by a number of items that were thrown by various people and that he had concern for all those that were present. The incident seems to have been broken up by Mr Noden discharging the firearm into the air. I've made comments in respect to that earlier this morning. The consequence was of course that Mr Noden in discharging the firearm sent the group that had gathered in Cable Street running. It seemed to have settled the matter down for a period of time.
The police at that stage were at the police station organising further assistance. That discharge of the firearm, as I've indicated, was heard by certainly Constable Fozard. The parties then it seemed and the police then moved into the laneway. They were seen to stop by Mr Tomarchio and Mr Noden and of course the group of people. Again I refer to the main protagonists, being Mr Forrest, Mr Stokes and Mr O'Donoghue, together with John Jones and it seems a number of other people, together with many of those that had otherwise gathered around to observe what was going on.
It seems that the abuse, the taunts and the threats then recommenced. The 2 police officers were attempting to disperse the people but it would appear that Mr Tomarchio and Mr Noden were observed by the group in the back yard of the units that people then went berserk and were screaming and yelling and engaging in the behaviour that I've referred to. Two police officers were present – Constable Parsonson and Constable Fozard. Mr Tomarchio's evidence in relation to this was that he then went, at about the time that the shotgun blast was sent off by Mr Noden, and armed himself with a pistol on a holster and belt.
He then came back outside and had an exchange, it seems, with those that were at the fence. He said that they were pushing, as I've indicated, on the fence. He was concerned and frightened that they would push the fence down and get him. So he indicated that he then moved towards the fence, had an exchange with people there – it seems Mr Forrest or Mr O'Donoghue. He says that people were face to face, particularly him and Mr O'Donoghue. There were threats that they knew who they were and they'd come back and kill them.
It was in the course of that he says that Mr O'Donoghue struck him. He said that he then struck Mr O'Donoghue back and there were further punches coming. He was concerned that the fence would be pushed over; that the gate would be opened. He then withdrew the hand gun from the belt and pointed it towards him and told the people effectively to fuck off away from his property. The evidence from Mr Tomarchio was in my opinion in some respects evasive to the answer. They were often protracted and long answers and often missed dealing specifically with the question.
They were, in my view, somewhat colourful answers at times, although I don't take away the fact that there was some concern by Mr Tomarchio because of the incidents that had occurred during that time. Mr Noden's evidence in relation to this matter was straight forward. He was honest, in my opinion, in what had occurred and what he observed happened. His concerns in relation to the incident in the back yard against the fence was that he was no doubt still particularly concerned about what was happening.
He, it seems, had stayed fairly well back from the fence, although it seems that Mr Tomarchio was prepared, despite all of the concerns that he expressed for his safety, to front the fence to the extent that he was almost face to face with people who were hanging over the fence. The evidence was, and I accept the evidence from both Mr Noden, Mr Tomarchio and Mrs Noden that there were no missiles thrown, it seems, over the fence during the incident in the back yard near the fence.
I have some degree of difficulty accepting the evidence of Mrs Noden in respect to the degree at which the picket fence had been pushed over. She indicated it had been pushed over to the extent of 15 to 20 degrees. When one puts that into the context that Mr Tomarchio claims that the fence had been eaten out by white ants one would have expected that the fence would have come crashing to the ground if it had been pushed to that extent.
I accept that there had been the group of about 5 or 6 people leaning on the fence and pushing on it to a degree, but certainly not to the extent in my opinion that it was leaning at an angle of 15 to 20 degrees and certainly not to the extent that it was likely to crash. The evidence of Mrs Noden in respect to seeing fists over the fence is not in my opinion inconsistent with the evidence given by Mr Tomarchio and the 3 civilian witnesses called by the prosecution. The evidence simply was, in my opinion, that police were present at the fence.
They were attempting to disperse those people that were there by simply asking them to leave. The evidence from the police officers that other back up was only a short time away, that they were slowly dispersing some of the people but there was still abuse being thrown over the fence. It seems that Mr Tomarchio even engaged in what was a relatively heated exchange about him defending his earlier incident in respect to young Tristan Mohren that had occurred.
That it seems in a sense tends to fly in the face of Mr Tomarchio's concern that he was in great fear of his life; that he was fearful that the fence would be pushed over by these people and the extent that he then proceeded, it seems, from some metres back – particularly from where he would have emerged from his back door – to walk and effectively confront a group of 6 odd people who were at the fence yelling threats, abuse and taunting him at the back gate.
He tells the court that he was in fear of his life, yet was prepared to walk up to the very people and face them face to face within inches, according to him, of Mr O'Donoghue and engage in an exchange with them. In respect to his suggestion that he was assaulted by Mr O'Donoghue I simply don't accept that that occurred as he described. I accept the evidence of Mr Forrest and Mr Stokes and Mr O'Donoghue that it was in fact Mr Tomarchio who struck Mr O'Donoghue and then resulted in an attempt by Mr Forrest, as described by Constable Parsonson and the other 2 civilian witnesses – Mr Stokes and Mr O'Donoghue that it was in fact Mr Forrest that leant forward in an attempt to strike Mr Tomarchio.
My finding that it was in fact Mr Forrest that the firearm was pointed at, in my view, is supported by the fact of the evidence of the witnesses that I referred to that it was in fact Mr Forrest that attempted to strike Mr Tomarchio. That was simply because he had struck Mr O'Donoghue. The question that I'm required to consider in this matter comes down to the issue of without lawful excuse"
His Worship then correctly directed himself as to the law which was applicable to the issue about whether the appellant had a "lawful excuse" for pointing the firearm. Hancock v Birsa [1972] WAR 177 was a case dealing with s 66 of the Police Act, which made it an offence for a person without "lawful excuse" to be in or upon premises. Burt J, at p 181, said that all that the expression required was a judgment by the court as to whether the defendant's presence on the premises was "excusable in all the circumstances of the case". Wickham J was of the same opinion. See also Director of Public Prosecutions v Wille (1999) 47 NSWLR 255 at [31], per Kirby J, and Jenal v Milner (1994) 11 WAR 264. In short, the issue is a question of fact to be decided on the evidence: Hancock v Birsa (supra) at 183, per Wickham J, and Jenal v Milner (supra).
Before the learned Magistrate, the matter proceeded on the basis of the onus of proving that the appellant did not have a "lawful excuse" was on the respondent. The respondent submitted to me that s 72 of the Justices Act 1902 applied. That section states that the onus of proving an exemption, exception or proviso or condition, is cast on a defendant. In my view, it is unnecessary to consider the question of onus because evidence was led fully on the point and a finding was made. The only question is whether or not the learned Magistrate's decision was correct.
The Magistrate had this to say in his reasons for decision about whether or not there was any lawful excuse:
"The view that I have in relation to this matter is to ask that whether to approach an angry crowd who are threatening violence, engaging in verbal abuse and exchange and in which the person has indicated that they're in fear of their life, in which are involved attempting to disperse a group of people who are clearly enraged and then to punch one of them, and to then use that as a reason in which to point a firearm at a person is whether it is an adequate excuse which would appear to a reasonable man to be adequate in the circumstances.
In my opinion the pointing of the firearm at a person in those circumstances after a person has struck another person in a group and to then use that as an excuse in which to point a firearm is in my opinion inadequate. The excuse in my opinion of pointing the firearm after a blow had been struck to Mr O'Donoghue simply does not, in my view, amount to a lawful excuse within the meaning of that in Hancock v Burser. In my opinion the prosecution have satisfied me beyond reasonable doubt that there was no lawful excuse for Mr Tomarchio to point the hand gun at Mr Forrest in the circumstances that prevailed at that time.
Accordingly I find each and every element proved beyond reasonable doubt by the prosecution and I find the charge approved (sic)."
In my opinion, there is no error revealed in the above reasoning. The "lawful excuse" defence required the Magistrate to decide whether, in the circumstances of this case, there was a lawful excuse. The Magistrate took into account all of the circumstances, balanced competing factors, and reached his decision that no lawful excuse existed. In my view, nothing has been established which shows that there is any error in the reasoning of the Magistrate in reaching a decision on this point. It was argued that, on the facts, the opposite conclusion could have been reached, but that is not sufficient to establish that his Worship erred in reaching his decision. I would dismiss this ground of appeal.
The fourth ground of appeal is in these terms:
"4.Given the state of the evidence, and the reasons given by the appellant for pointing the firearm, the learned magistrate erred in law by failing to properly direct himself to any of the following propositions:
·The appellant was defending himself in terms of s 248 of the Criminal Code.
·He was defending others in terms of s 250 of the Criminal Code.
·He was preventing a breach of the peace in terms of s 237 of the Criminal Code.
·He was suppressing a riot in terms of s 238 of the Criminal Code.
·He was defending his property against trespassers in terms of s 254 of the Criminal Code.
·He was preventing a home invader from entering his place in terms of s 244 of the Criminal Code.
·He was resisting violence in terms of s 31(3) of the Criminal Code.
·He had a 'lawful excuse' in terms of s 23(8) of the Firearms Act."
This ground of appeal, as can be seen, alleges that the Magistrate did not deal with certain Criminal Code defences. The appellant submitted that the evidence raised these defences and that it was necessary for the prosecution to negate them beyond a reasonable doubt (as to which, see R v Mullen (1938) 59 CLR 124.
As will be seen from the reasons which follow, I reach a conclusion that the Magistrate did err when he failed to direct himself to consider these defences. In reaching this conclusion, I should say, however, that his Worship's failure to consider them probably came about because of submissions made to him by counsel for the appellant. During the course of closing submissions, counsel for the appellant made submissions which can be read as suggesting that his Worship was only required to consider whether or not the offence occurred without "lawful excuse". In making that comment, I am not intending to criticise counsel for the appellant because, upon a careful reading of the transcript, he did refer to the Criminal Code defences. At the end of his submissions, he appears to have expressed confidence that the Magistrate only had to consider the "lawful excuse", because he would then conclude that the appellant should be acquitted. The Magistrate appears to have taken that as a submission that if he found that there was no "lawful excuse", he did not have to consider the CriminalCode defences.

I will now deal with each of the sections of the Criminal Code referred to in ground 4 and explain why I consider that the evidence did raise these defences for consideration.

Self Defence and Defence of Others

Section 248 reads:
"When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm. …"
Section 250 reads:
"In any case in which it is lawful for any person to use force of any degree for the purpose of defending himself against an assault, it is lawful for any other person acting in good faith in his aid to use a like degree of force for the purpose of defending such first‑mentioned person."
It was assumed by both parties during the course of oral submissions on this appeal that if there was sufficient evidence to raise the defences under s 248 and s 250, that the Magistrate was required to direct himself to consider these sections and then to make the necessary findings of fact to deal with them. I found myself unable to find any authority to state that these sections provide a defence to a charge under the Firearms Act, and as a result called for further submissions from the parties. The two sections speak in general terms, and at first it might be assumed that they must apply in this case. However, the presence of s 36 in the Criminal Code raises a question about whether the assumption is correct.
Section 36 of the Criminal Code states that the provisions of ch V of Pt 1 of the Criminal Code "apply to all persons charged with any offence against the Statute Law of Western Australia". Chapter V deals with criminal responsibility. Sections 248 and 250 do not, of course, fall within ch V. The absence of a provision like s 36 in relation to s 248 and s 250 raises a question as to whether those sections apply to afford a defence to offences created in statutes other than the Criminal Code. A similar question has been asked in relation to s 7, which is in ch I of the Criminal Code. In West v Suzuka [1964] WAR 112, the Full Court considered the question. The Full Court concluded that s 7 did apply to offences outside the CriminalCode, notwithstanding the existence of s 36. Hale J at p 120, after quoting s 36, said:
" … the presence of this section in such a statute as the Criminal Code could support an argument that the provisions of the other chapters were not intended to have a general application."
His Honour concluded, however, that s 7 was not confined to offences created by the Criminal Code. His Honour relied on earlier Western Australian decisions and the Full Court's decision in Wilson v Dobra (1955) 57 WALR 95, and upon two decisions of the Queensland Full Court to the same effect. It was argued in West v Suzuka (supra) that Wilson v Dobra (supra) was a decision reached per incuriam, because the Court did not there refer to the existence of s 36. Hale J rejected this argument. He said that the decision in Wilson v Dobra (supra) and the two Queensland decisions, were of long standing and that, in effect, they should be followed for that reason. His opinion was obiter on this point. He decided that s 7 did not assist the appellant in that case. Perhaps the recognition that the point might be raised in future, prompted Parliament to deal with this point when, by the Criminal Law Amendment Act 1996, a new s 13 was introduced to read:
"When an offence under this Code or any other law of Western Australia is committed, section 7 of this Code applies to a person …"
In Renwick v Bell [2001] QCA 316, it was also argued that s 7 of the Criminal Code had no general application to all statutory offences. The above authorities were reviewed, and the Court of Appeal in Queensland concluded that s 7 did apply to all offences against the statute law of Queensland. See also Lewkowski v Lilley [2000] WASCA 14. All of these authorities are only to the effect that s 7 applies to all statutory offences. They do not answer the question about whether other provisions in other chapters of the Criminal Code which afford a defence to offences created in the Criminal Code, also afford defences to an offence created under another statute.
I should also mention s 5 of the Criminal Code Act 1913, which reads "When, by the Code, any Act is declared to be lawful, no action can be brought in respect thereof …". If that section applies to criminal proceedings, then clearly s 248 and s 250 would apply to afford a defence to a charge under the Firearms Act. The section heading reads "Civil remedies and saving", but by virtue of s 32(2) of the Interpretation Act 1984, I may not have regard to those words because they do not form part of the written law. It is clear that in civil actions, defences in the Criminal Code may be pleaded. If any authority is needed for this proposition, see Lotz v Bullock [1912] St R Qd 36; White v Connolly [1927] St R Qd 75; Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632; and Bridge v Tozer [1978] WAR 177, (and on appeal) West Australian Newspapers Ltd v Bridge and Tozer (1979) 141 CLR 535. The word "action" in s 5 is a word of wide meaning. See, for example, Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45 at 54. However, that case and the cases it refers to and other cases which can be found, are all in the context of civil or Crown proceedings of one sort or another. The proceedings against the appellant in this case were commenced by a complaint. The Justices Act 1902 defines "complaint" as including "information", "information and complaint" and "charge" and, unless the contrary appears, means an information and complaint before justices. It is clear from many provisions of the Justices Act 1902 that a complaint is the first step in criminal proceedings. (The distinction between complaint and information has been blurred. As to which, see Jones v Metcalf [1979] 2 NSWLR 709.) In my opinion, the word "action" in s 5 does not refer to proceedings brought by complaint. I therefore conclude that s 5 has no relevance to the question I have at hand.
What then does the declaration of lawfulness mean in s 248 and s 250? The word "lawful" always takes its meaning from the context in which it is found. It can mean simply, permitted, ie something which can be done without an infraction of the law, eg a lawful trade; or it can mean something which is supported by the law, eg lawful authority; or again it may imply the quality of being legally enforceable, eg a lawful demand which can be enforced in an action: Hancock v Birsa (supra) at 178‑179; Crafter v Kelly [1941] SASR 237 at 243; and Taikato v The Queen (1996) 186 CLR 454 at 460. In my opinion, the declarations by Parliament about the lawfulness of conduct described in s 248 and s 250, are clearly declarations that the conduct will not involve any infraction of the law. In my opinion, these declarations are not to be read as declarations that the conduct is lawful only in relation to charges laid under the Criminal Code. My conclusion on this point applies to all of the sections relied on and which declare conduct to be lawful.
In relation to s 248, counsel for the appellant points to the evidence that Maxwell Forrest, the person outside the fence, was about to punch the appellant just before the firearm was pointed: see AB 219 line 43. Thus the appellant claims he was assaulted because the attempt to punch him involved a bodily act or gesture, amounting to a threat to apply force to him without his consent. He says the threat was made in circumstances where the threat had the ability to affect his purpose.
The Magistrate found, as set out above, that Mr Forrest "leant forward in an attempt to strike Mr Tomarchio". Mr Forrest gave evidence that he "actually wanted to punch" Mr Tomarchio. The appellant gave evidence about the incident at the fence.
"He comes up to me and says, 'We know who you fucking are. We're going to fucking kill you' and he had this horrible smirk on his face. I have got blood coming out from 4 or 5 areas on my body. I've already been physically attacked. I've already been verbally abused for the ensuing 30 odd minutes that have been past. I couldn't contain myself. He apparently did take a strike at me first, however, I did fairly and squarely punch him in the face.
This had a cause that the immediate group, and we're talking about perhaps 8 or 10 people – not 3 or 4 but 8 or 10 – made a rush towards me. It is a picket fence. It is white anted. The gate itself was unlocked. I certainly did not want to sustain any further injuries to myself. It was at that point that I did produce a firearm. I did not put a magazine in it. I did action it because if you go to pull a firearm make them think that it's cocked."
(Mr Tomarchio was there referring to Troy O'Donoghue rather than Mr Forrest, but it was the same incident. The Magistrate found Mr Tomarchio was mistaken about the identity of the person involved). In my view, that was sufficient evidence to require consideration of s 248.
The Magistrate therefore erred in failing to direct himself in terms of s 248, and in consequence he erred in failing to make the necessary findings of fact in relation to that defence.
One of the issues he would have had to decide if he had directed himself in terms of the self‑defence provision in s 248, would have been whether the appellant could have retreated rather than draw the gun: R v Howe (1958) 100 CLR 448; Hogermeer v Smyth, unreported; SCt of WA (Anderson J); Library No 970270; 27 May 1997 at 6, and Lea v Gibson, unreported; SCt of WA (Rowland J); Library No 9058; 16 September 1991 at 5‑6. (There is no rule that an accused must retreat as far as possible before attempting defence, but the possibility of retreat is a relevant factual consideration.)
Consideration would also have to have been given to the question about whether the pointing of the gun was such force as was reasonably necessary to make effectual defence. I should add that the issue is not decided merely by the fact that his action in producing the gun prevented any physical assault: see Soppa v Chatterton [1995] QCA 66. The respondent argues that the production of the gun was force which was not reasonably necessary. The respondent points out that by then, the police were in attendance and in close proximity. They had not themselves thought it necessary to draw their weapons. The respondent submits that it was open for the appellant to move back from the fence or to go into the house. They are all matters which would have been considered by the Magistrate if he had directed himself in terms of s 248.
The evidence also raised for consideration the defence under s 250. At AB161 line 40, when asked by the prosecutor why he produced the firearm and pointed it, the appellant referred to the events of the previous 30 minutes, the attack upon himself, the fact that he had blood on his face, and then added:
"I've got 2 women that are fucking screaming. I am responsible for my business, my livelihood, their lives, as well as my life. I have an uncontrollable crowd who are faced with 2 policemen who are armed and the coppers aren't able to do anything about them for 5, 7, 8, 10 minutes."
In my view, that was sufficient to discharge the evidentiary onus which raised the possible defence under s 250. As a result, the Magistrate erred in not directing himself in terms of s 250 and then making the appropriate findings.
One issue the Magistrate would have to decide was whether or not the appellant was acting in "good faith" in aid of the two women. Counsel for the respondent submitted that he produced the firearm because he felt the policemen were not taking action quickly enough. Certainly, one view of the evidence would allow a conclusion that the appellant came out of the building to vent his anger at the crowd with an intention to assert his authority over the crowd rather than leaving the job to the police. One view is that he drew the weapon to assert that authority. If so, s 250 would not afford any defence. These matters were for the Magistrate to consider after directing himself in terms of the sections.

To Resist Violence

Section 31 reads:
"A person is not criminally responsible for an act or omission if he does or omits to do the act under any of the following circumstances, that is to say –
…
(3)When the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence …"
This subsection states that a person is not criminally responsible for an "act" in the circumstances mentioned, whereas s 248 makes it lawful for a person to use "force" to an assailant in order to make an effectual defence against assault. However, the difference in language between the two sections in the circumstances of this case does not, in my opinion, produce any different considerations from those already discussed in relation to s 248 and s 250. Thus, the Magistrate erred in not considering the defence under s 31(3). If he had considered defences under s 248 and s 250 then he would have been covering issues similar to those arising for consideration under s 31(3).

The Use of Force to Prevent Wrongful Entry to Premises

Section 254 reads:
"(1)For the purposes of this section … the term 'place' means any land, building, … or a part of any land, building, …
(2)It is lawful for a person ('the occupant') who is in peaceable possession of any place, or who is entitled to the control or management of any place, to use such force as is reasonably necessary –
(a)to prevent a person from wrongfully entering the place;
…
provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm to the person. …"
There can be no doubt on the facts that the appellant was a person who was in peaceable possession of premises.
In my view, there was evidence led which required the Magistrate to give consideration to the defence under s 254. Mr Noden gave evidence at AB171 that he felt that the two police officers who were in attendance had no control. He gave evidence that the police were yelling for the people outside to stop and move on, and that nothing happened in response, and then he said:
"Then it was like there was a sort of a rush - - a rush of people. They sort of moved forward and it was like no, they're coming over the friggen fence. I looked at Matt the police officer and no jokes, the fear that I saw in his eyes then was just oh god, what are we going to do. With that I just about - - I started to get my gun because it was broken over my shoulder, just to bring it - - just started to bring it forward. As they sort of come forward the fence sort of started moving forward and yet then they went back quickly."
At AB162 the appellant gave evidence:
"Had I let that mob come through the fence - - it wouldn't have taken much for them to come through the fence. They then would have been on my property. Do you know what your people would have done? They would have started to defend me, the victim"
That evidence was sufficient to raise the defence which then required the prosecution to negative it beyond a reasonable doubt. The respondent, on the other hand, refers to evidence at AB54 line 45, where one of the policeman was asked: "Did you at any time see any of the people attempt to enter the yard?" He answered: "No‑one attempted to enter the yard." The respondent also points to the evidence of the appellant at AB154, where the following question and answer can be seen:
"During that whole time did anyone jump over the fence or climb over the fence?---There was plenty of areas to do so but the crowd was tightly packed and in that immediate vicinity no‑one made a serious attempt. Had they made a serious attempt the fence is white anted. It wouldn't have been difficult to come through. The gate was unlocked. They could have easily come through."
The evidence referred to by the respondent might have led the Magistrate to conclude that it was not necessary to produce the pistol because there was, at the time, no person attempting to "wrongfully enter the place". There was, however, no resolution of this issue because the Magistrate did not direct himself to consider the provisions of s 254.

Defence of Dwelling from "Home Invader"

Section 244 of the Criminal Code reads:
"(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;
(b)…
(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;
…
(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.
…
(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. …"
An "offence" is defined in s 244 to mean an offence in addition to any wrongful entry.
On the appellant's evidence at AB136 (the passage quoted above), it is clear that he was concerned about a further assault on his person, and it is possible that he was concerned about an assault on the women in the house if the persons outside the fence came through the fence. In my opinion, the Magistrate should have directed himself in terms of s 244 and then made the necessary findings of fact to reach a conclusion about whether or not the respondent had negatived the defence.

Suppression of Riot

Section 238 reads:
"It is lawful for any person to use such force as is necessary to suppress a riot, and is reasonably proportioned to the danger to be apprehended from its continuance."
Section 62 of the Criminal Code reads:
"When 3 or more persons, with intent to carry out some common purpose, assemble in such a manner, or, being assembled, conduct themselves in such a manner as to cause persons in the neighbourhood to fear, on reasonable grounds, that the persons so assembled will tumultuously disturb the peace, or will by such assembly needlessly and without any reasonable occasion provoke other persons tumultuously to disturb the peace, they are an unlawful assembly.
It is immaterial that the original assembling was lawful if, being assembled, they conduct themselves with a common purpose in such a manner as aforesaid.
An assembly of 3 or more persons who assemble for the purpose of protecting the house of any one of them against persons threatening to break and enter the house in order to commit an indictable offence therein is not an unlawful assembly.
When an unlawful assembly has begun to act in so tumultuous a manner as to disturb the peace, the assembly is called a riot, and the persons assembled are said to be riotously assembled."
The Full Court of this Court in Boxer v The Queen (1995) 14 WAR 505 had reason to consider these provisions of the Criminal Code.
Malcolm CJ at 508 said:
"Section 62 contemplates a two stage process leading to the commission of the offence of riot. The first stage involves three or more persons with intent to carry out some common purpose conducting themselves in such a way as to constitute an unlawful assembly. When an unlawful assembly has begun to act in so tumultuous a manner as to disturb the peace, the assembly is called a riot, and the persons assembled are said to be riotously assembled."

His Honour also noted that the Code definition omits the common law requirement that the common purpose be illegal. His Honour also considered the meaning of the word "tumultuous" in s 62, and said at 514 that:
"This requires proof of tumultuous behaviour amounting to the use of force or acts of violence in the same way as the common law offence".
In my opinion, on the evidence before the Magistrate, there was a riot in progress. There were three or more persons having the intent to carry out a common purpose. Three of the participants said that their purpose in assembling outside the appellant's premises was, in effect, to locate and ascertain why the appellant had assaulted the youth whom the appellant and Mr Noden had attempted to hold at the police station. See AB14, AB41 and AB46.
They assembled outside the appellant's premises and they conducted themselves in such a manner as to cause the appellant, Mr Noden, and the two women in the house to fear on reasonable grounds that the persons assembled would disturb the peace by using force or acts of violence. Acts of violence occurred when missiles were thrown by one of the assembled gathering into the premises, some of which struck and injured the appellant.
The respondent argued before me that the riots subsided after Mr Noden discharged his shotgun, but another view is that this caused a temporary dispersal of the crowd, a significant portion of which then reassembled at the fence line where the incident occurred which led to the appellant being charged. In my opinion, the Magistrate should have directed himself to consider the provisions of s 238 and then to make findings of fact in relation to it. The issue was whether pointing the firearm was "necessary" to suppress the riot. Further, the Magistrate had to consider whether it was such force as was reasonably proportioned to the danger to be apprehended from its continuance. Whether it was reasonably proportioned to the danger was a matter for the Magistrate to decide. The Magistrate therefore erred in failing to do so.

To Prevent a Breach of the Peace

Section 237 reads:
"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 renew the breach of the peace for such time as may be reasonably necessary in order to give him into the custody of a police officer."
"Breach of the peace" is an expression which different courts have attempted to define. Some of the cases and articles have been collected together in Nicholson v Avon [1991] 1 VR 212 . I would agree with what was said in R v Howell [1982] 1 QB 416, namely that there is a breach of the peace whenever harm is actually done, or is likely to be done, to a person, or, in his presence, to his property, or a person is in fear of being so harmed through an assault, an affray or a riot.
In my view, the facts of the case do reveal that at the time the appellant pointed the firearm, there was evidence which, if accepted, would show that the appellant was in fear of harm being done either to himself or to others in the house. Once again, the respondent argues that this defence could not be made out on the facts. Unfortunately the findings of the Magistrate are somewhat ambivalent on this point. At one point, in commenting upon Mr Tomarchio's "colourful answers", the Magistrate said: "Although I don't take away the fact that there was some concern by Mr Tomarchio". He also notes Mr Tomarchio's evidence that he was "fearful for his life" and that he was "extremely concerned". His Worship said: "I can understand that the situation … was of huge concern to him, him having been struck". On the other hand, his Worship comments adversely on Mr Tomarchio's evidence when he says "Mr Tomarchio was prepared, despite all of the concerns he expressed for his safety, to front the fence to the extent that he was almost face to face with people who were hanging over the fence".
The respondent points out that the appellant could have retreated but chose not to do so, choosing rather to draw the pistol and point it in circumstances where the police had not considered it necessary to do so. No finding was made on this point. In my opinion, on the evidence before him, the Magistrate should have directed himself to consider the provisions of s 237 and then to make findings of fact as required by that section.

Section 199 of the Justices Act

The respondent has urged me not to set aside or quash the decision of the Magistrate if I conclude, as I have, that he erred in failing to direct himself as to the Criminal Code defences. The respondent urges me to make findings of fact in relation to those defences. The respondent submits that s 199(3) of the Justices Act 1902 would allow me to do so. Section 199(3) of the Justices Act 1902 reads:
"The Court is not required to set aside, quash or vary a decision of any justices because the justices omitted to make any necessary finding if the facts or evidence –
(a)in substance support the decision; or
(b)justify the finding,
and the Court may instead under subsection (1) either vary the decision or substitute another decision for it."
The respondent also points to s 199(1) which reads:
"Upon the hearing of an appeal, the Court may do one or more of the following –
(a)…
(b)dismiss the appeal notwithstanding that any point raised on the appeal might be decided in favour of the appellant, if it considers that no substantial miscarriage of justice has occurred."
The respondent submits that if I make the findings of fact, I will be able to exercise my powers under s 199(1)(b) and dismiss the appeal on the basis that no substantial miscarriage of justice has occurred.
An appeal under Pt VIII of the Justices Act is an appeal by way of rehearing. Canale v Bayens [2001] WASCA 383. This Court can, in an appropriate case, remedy defects in the decision of the Court below by exercising the powers to which the respondent has referred.
In my opinion, it would not be appropriate in the circumstances for me to embark on the task of making the findings which should have been made by the Magistrate at the original hearing. There are too many defences to be considered, and although some of the issues re‑occur (for example, whether the force used was reasonably proportioned to the danger), those defences should be considered by a person who has observed the appellant in the witness box and considered all of the evidence. I do not have all of the evidence that was before the Magistrate. For example, I was informed that there was a video which was tendered in evidence showing the location, and that there were photographs tendered in evidence showing the location. They are not before me. A correct understanding of the location would also be important in making proper findings. For those reasons, I decline the invitation to exercise the powers I have under s 199(1)(b) or (3) of the Justices Act. The remaining question is whether I should quash the decision and remit it for re‑hearing before another Magistrate or whether I should exercise my discretion to refuse to order a new trial. The power to order a new trial is a discretionary one. See s 199(1)(d) of the Justices Act 1902.

Should a new trial be ordered

In Rabey v The Queen [1980] WAR 84 at 95, Wickham J said:
"Where the case is strong and the error is a procedural one only, there is much to be said for the proposition that the matter should be retried in a proper manner. There are, however, other considerations. A new trial ought not to be ordered as a matter of course. Once justice has miscarried it is not always easy to maintain the scales in precise equipoise on a second occasion. The public interest in securing a fair trial of an alleged wrongdoer must be weighed against public inconvenience and expense, and against the possible oppression upon a member of the public who is placed in jeopardy twice for the same offence, … and has already been through one trial and an appeal. … Some of the criteria for exercising the discretion to order a new trial are referred to in R v Bailey [1956] SASR 153; R v Leak [1969] SASR 172 at 175 et seq; in R v Hanias [1976] 14 SASR 137 at 145 and 157, and in the authorities therein mentioned. To these I would add the consideration that in this case the circumstances of the charged offence were comparatively venial."
In Peacock v The King (1911) 13 CLR 619 at 675, O'Connor J said that where the facts proved that the first trial would have been sufficient to support the conviction if the jury had been properly directed, a new trial may be granted to enable the faulty direction to be remedied, providing that no injustice is done to the accused.
Wickham J in Rabey's case (supra) also said that where the case is weak and the jury properly directed "would properly acquit", then the Court may properly incline towards refusing a new trial. Griffiths CJ in Peacock v The King (supra) at 641 said:
"I do not think it was intended that a new trial should be granted as of course in every case where there has been an irregularity. I think the proper rule is that where there was evidence to go to the jury and the error was of such a nature that, if it had not been committed, the verdict would probably have been the same, a new trial may be granted. On the other hand, if, on the whole case, it is reasonably probable that, but for the error complained of, the verdict would or might have been different, a new trial should not be granted."
See also Boxer v The Queen (supra) at 540‑541 and Ibbs v The Queen [2001] WASCA 129. Applying those criteria, the question is whether I should direct that there be a new trial.
In my opinion, there is a public interest in securing a fair trial of the appellant. In my view, the admissible evidence given at the original trial was sufficiently cogent to justify a conviction if a certain view is taken of the evidence. The defect with the decision is not in the evidence but in the failure of the Magistrate to correctly direct himself as to the law and then to make the necessary findings based upon that law.
I do not consider that the circumstances of the charged offence were venial (venial meaning "that (which) may be forgiven or pardoned; not seriously wrong, as a sin … excusable, as an error or slip" – see Macquarie Dictionary). The appellant submits that the pointing of an unloaded hand gun at a person at close quarters was not such a serious matter. In my opinion, the pointing of a hand gun (loaded or unloaded) at a person's head in circumstances of anger, fear or emotional upset, is likely to cause considerable fear and anxiety in the person on the receiving end. I do not accept the suggestion that the pointing of the weapon, if not excused by law, can be described as not seriously wrong. It was certainly not an error or slip. However, whether this was a use of the unloaded weapon excused or justified by law, is still to be decided.
In my opinion, the appellant should be retried.
I will therefore allow the appeal, quash the conviction, and direct that the case be remitted for rehearing before another Magistrate.