TREZISE v Police - [2009] SASC 209

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TREZISE v POLICE
[2009] SASC 209
Judgment of The Honourable Justice Anderson
21 July 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DEFENCE OF PERSONS OR PROPERTY - REASONABLE BELIEF IN NECESSITY OF RESPONSE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL
Magistrates appeal - appeal against guilty verdict - s 20(4) of Criminal Law Consolidatoin Act 1935 - assault causing harm - whether prosecution failed to exclude the reasonable possibility that the defendant acted in self-defence - whether defendant's conduct was reasonably proportionate to the threat that he genuinely believed to exist.
Held: Prosecution failed to exclude self-defence - defendant's conduct was reasonably proportionate in the circumstances - appeal allowed - finding of guilt quashed and verdict of acquittal entered.
Criminal Law Consolidation Act 1935 (SA) s 20(4) and s 15(1), referred to.
Police v Lloyd (1998) 72 SASR 271, applied.

TREZISE v POLICE
[2009] SASC 209
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

The appellant was charged with assault causing harm pursuant to s 20(4) of the Criminal Law Consolidation Act 1935 (“the Act”). The offence was alleged to have been committed on 9 November 2008 in Whyalla. The appellant pleaded not guilty, and after a trial in the Whyalla Magistrates Court the magistrate found the appellant guilty of the offence. The magistrate declined to record a conviction or impose a penalty.
The only issue in the appeal is whether the prosecution successfully excluded the reasonable possibility that the appellant acted in self-defence. Pursuant to s 15(1) of the Act 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.
Background
The prosecution alleged that in the early hours of the morning of 9 November 2008 outside the Eyre Hotel the complainant, Mr Kersley was punched by the appellant, that the punch knocked him to the ground and that he split his lip and lost consciousness.
As to the events earlier in the evening before the incident in question, the appellant’s evidence was corroborated by a friend, Mr Seymour. He said that the appellant was not the instigator of any incidents, that he had tried to avoid the complainant but had been followed by him and had attempted to avoid him again.
Although the appellant had been drinking during the evening, there is no suggestion that he was unable to accurately recall the details of what happened because of his consumption of liquor.
The magistrate found in favour of the appellant in relation to the events earlier in the evening. Her Honour said:
[4]In relation to this matter, the incident seemed to have started with a bump between two people inside the Eyre Hotel at some stage before two o’clock in the morning.
[5]The evidence is, as best I can tell, that the defendant moved away from the victim when this happened, but, as was pointed out by defence counsel, from then on wherever the defendant goes the victim appeared, including at a street corner at the start of the CCTV footage.
Her Honour then said:
[6]I accept the defendant’s evidence that he did not want to turn his back on the victim. Whether voices were raised or not, it is clear from the evidence that when the defendant moved forward, the victim followed, and in the end the defendant stood his ground. It is clear that the defendant’s conduct up to that point was conduct that was necessary and reasonable for a defensive purpose. It is quite clear that the defendant did indeed genuinely believe a threat existed.
The case run by the defence at the trial was that it was the complainant who was the aggressor earlier in the evening inside the hotel and that the complainant had later followed the appellant outside the hotel and was abusive. Outside the hotel the complainant grabbed the appellant by the shoulder and raised his fist. The appellant then claims to have pushed the complainant away in self-defence.
The complainant was considerably affected by liquor. His blood alcohol content at the time he was treated in hospital, not very long after the incident, was 0.175. He was unable to give evidence of the circumstances of the incident. The only oral evidence which was given of the actual incident came from the appellant. There was also the closed circuit television recording of the incident which, although it shows the incident from a distance, is not sufficiently clear to clarify one way or the other, whether it was a punch or a push which caused the complainant to fall to the ground.
Having concluded that the appellant did genuinely believe that a threat existed, Her Honour then posed the correct legal test at [7]:
The question is whether 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.
It is apparent that Her Honour was not helped by the CCTV footage as to whether the appellant punched or pushed the complainant. However, from her later reasons it is clear that Her Honour proceeded to analyse the situation on the basis that it was a push. Both parties accepted in the appeal that this was the case.
Appellant’s submissions
Mr Retalic for the appellant submitted that if it is accepted that it was an open-handed push, then it was easily justified having regard to the circumstances described by the appellant leading up to the incident as found by the magistrate.
The complaint by the appellant is that the magistrate failed to properly direct herself in relation to the question of proportionality. Her Honour said at [11]:
The question of reasonable proportionality is objective, and regardless of the defendant’s state, including his state of intoxication.
However, Her Honour then went on to say at [12]:
Had the defendant not been drinking, there is no doubt that he would have seen that pushing a person who had been drinking, who had a wall behind him, might well result in the person losing their balance and hitting his head on the wall or the footpath as he fell as a result of the application of force.
Mr Retalic submits that this amounts to a finding that the appellant’s behaviour was unreasonable by the standards of persons who are not intoxicated and is wrong in law. He submits that Her Honour misdirected herself thereby in concluding that the prosecution had disproved self-defence beyond reasonable doubt.
Mr Retalic referred to the decision of Police v Lloyd (1998) 72 SASR 271 per Debelle J at 278 and 279. He submitted that it was not the task of the magistrate to decide if the conduct of the appellant was objectively reasonable. The magistrate had to consider, as she correctly posed at paragraph [7] of her reasons set out earlier, whether the conduct of the appellant was, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat that he genuinely believed to exist.
In Lloyd, Debelle J said at 279:
… The court or a jury must, of course, determine whether the belief was genuinely held. Regard will be had to objective facts for the purpose of doing so. But the court or a jury must not allow this exercise to descend to a determination of the reasonableness of the belief.
Conduct of complainant
Although not mentioned by the magistrate in her brief reasons, there is evidence, which is basically undisputed, from the appellant when he describes the events during that evening. The complainant bumped into the appellant in the beer garden of the hotel, and spilled his drink. He then said to him “I’m going to beat you up tonight” and was generally abusive and threatening. He had also spat at the feet of the appellant, as confirmed by the witness Mr Seymour. Mr Seymour said that the complainant also had a confrontation with other patrons in the beer garden.
The appellant and Mr Seymour then went inside the hotel to get away from the complainant, but he eventually followed them inside. The appellant said in evidence that the complainant continued to stare threateningly at him and Mr Seymour, so they decided to leave the hotel to avoid trouble.
The complainant followed the appellant and Mr Seymour outside, where he urinated on the post box out the front of the hotel, and was spoken to by a police officer who was in attendance. He was actually reported for the incident. At this point, Mr Seymour left the appellant to go back inside the hotel to collect his girlfriend. The appellant then proceeded towards a nearby taxi stand. The complainant followed the appellant along the footpath and abused him. The appellant said he kept walking but the abuse from the complainant became louder and the appellant told him that he did not want any trouble. If was after this that the complainant followed him and grabbed him on the right shoulder, and when the appellant stepped back, the complainant raised his fist. The appellant says that that is when he pushed the complainant away.
On this uncontested version of events, which the magistrate appeared to accept, there is no doubt about the aggression of the complainant, who appears to have been spoiling for a fight. It is in those circumstances that the appellant’s push and the question of proportionality must be viewed. The complainant was considerably larger than the appellant and was aggressive and very drunk.
Mr Retalic submits that the magistrate has not followed the correct approach set out in Lloyd. There, Debelle J at 276 set out three steps, as required by s 15. The steps are as follows:
1.Whether it was a reasonable possibility that the respondent genuinely believed that the safety of his person was threatened. In that respect the magistrate in this matter found in favour of the appellant.
2.With that genuine belief, the question then is whether it was a reasonable possibility that the respondent genuinely believed that he had to act to defend himself from that threat. Again, in this matter the magistrate found in the appellant’s favour.
3.That then required an answer to the question of whether it was a reasonable possibility that the respondent genuinely believed that it was both necessary and reasonable to push (the complainant) in the way that he did in order to defend himself.
Respondent’s submissions
The respondent accepts that the magistrate found, in relation to both of the issues numbered 1 and 2 set out above, in favour of the appellant. Furthermore, the respondent accepts in its written submissions that it is clear that the magistrate found that what the appellant did was push the complainant and that it was on that basis that she considered the issue of proportionality.
The respondent argues that the magistrate did properly direct herself as to the test under the third question posed by Debelle J in considering s 15 of the Act. That is so, as I have already discussed, because the magistrate did correctly direct herself in paragraph [7] of her reasons. It is when Her Honour comes to apply that test to the facts as she found them to be that it is apparent that she has not looked at the matter correctly. She has, as Mr Retalic puts it, considered what might be reasonable to someone who has not been drinking. Mr Retalic submitted that it was not appropriate to use the fact of drinking by the appellant to exclude a defence because the conduct would be unreasonable if done by someone who was sober.
Conclusion
In that respect, I find myself in agreement with Mr Retalic’s submission. There is confusion in Her Honour’s brief reasons in relation to that question. Her Honour considered it to be “a lineball case”. The misdirection which I have referred to is important and clearly swayed Her Honour in finding that the conduct for a defensive purpose was not reasonably proportionate in this case.
Her Honour said at [8]:
… The CCTV footage shows the defendant moving forward, and then the victim going backwards, with his head moving towards a wall. It appears that the victim was knocked out when his head hit the wall. The defendant is lucky that he did not end up on a murder charge when it did.
She then, at [12], as I have already said earlier in these reasons, put the appellant in the position of someone who had not been drinking.
On the whole of the evidence, given the actions of the complainant earlier in the evening, given his actions in following the appellant around the hotel, and given that in addition to the abuse he delivered, the complainant also grabbed the appellant by the shoulder and raised his fist, the push was, in my view, necessary and reasonable for the appellant to defend himself.
I am therefore convinced that the magistrate has erred. On the whole of the facts, most of them uncontested and found by the magistrate in favour of the appellant, this was a case where the prosecution had not excluded the reasonable possibility of self-defence.
I therefore quash the finding of guilt and enter a verdict of acquittal.
I will hear the parties on costs.