Vincent Clifford Branson v SA Police No. SCGRG 93/516 Judgment No. 3904 Number of Pages 6 Criminal Law and Procedure

[1993] SASC 3904

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PRIOR J

CWDS
Criminal law and procedure - particular offences - offences against the person - appellant found guilty of assault - application of force not disputed - issue whether force used attracted provisions of s15(l) of the Criminal LawConsolidation Act 1935 - restraint of the appellant's 10 year old son by school principal - magistrate may have misapprehended the correct test for the application of a defence of self-defence pursuant to sl5(l) - appeal allowed. Criminal Law Consolidation Act 1935s.15(1). R v Fennell (1971) QB 428; Zecevic v Director of Public Prosecutions (1987) 162 CLR 645 at 663 and Hirschausen v Brady No. 3823, delivered 25.1.93, applied.

HRNG ADELAIDE, 15 April 1993 #DATE 20:4:1993
Counsel for the appellant:        Ms K A Whimp
Solicitors for the appellant:     Aboriginal Legal
  Rights Movement
Counsel for the respondent:     Ms K J Parouchais
Solicitors for the respondent:    Crown Solicitor

ORDER
Conviction set aside, matter remitted for re-hearing before another magistrate.

JUDGE1 PRIOR J The appellant was found guilty of assaulting Peter Johnstone, the principal of the Elizabeth Field Primary School at the school on 13 August, 1992. The respondent did not dispute the fact that he had applied force to Mr. Johnstone. The issue raised in the trial was whether the force used against Mr. Johnstone by the appellant attracted the provisions of s.15 of the Criminal Law Consolidation Act 1935. In sub-s.1 of that section it is provided that a person does not commit an offence by using force against another if that person genuinely believes that the force is necessary and reasonable to defend himself, herself or another. 2. The magistrate accepted the evidence of Mr. Johnstone and a teacher at the school, Mr. Williamson. They were seeking to resolve a skirmish involving a group of children at the school. A fight started in the middle of the school oval. Mr. Williamson told the court that he restrained one pupil by putting him on the ground. The principal, Mr. Johnstone, tried to keep the appellant's son from being involved in the fight, grabbing him by the wrists and doing with him as Williamson had done with another pupil, putting him on the ground to restrain him. The appellant came onto the scene telling the principal to leave his son alone and striking him in the shoulders with both arms and hands. After the principal had stood up the appellant pushed him again in the chest. The principal's evidence was that he had difficulty restraining the appellant's son and that, "when he started kicking me I felt that the only way in which I could properly restrain him was to put him on the ground, which I did and then I held his legs down because he was thrashing with his legs and I asked him to relax, keep calm." Mr. Johnstone spoke of suddenly becoming conscious that the appellant was running towards him, sort of catching a glimpse of him out of the corner of his eye. He said that the appellant approached him at some speed and pushed him off, "quite violently" so that he fell over onto the ground. Consistently with the evidence of Mr. Williamson, Mr. Johnstone said that the appellant came up towards him and "he used his open palms and shoved me." Mr. Johnstone said that this shove caused him to fall off of the appellant's son and onto the ground, Mr. Johnstone quickly getting up with the appellant then approaching him and shoving him another time in the chest. Mr. Johnstone said that he was shoved some six times like that with the appellant swearing at him and shouting, saying things like, "no one touches my son and gets away with it." 3. Mr. Johnstone said he was afraid of the appellant. He asked him to leave the school grounds, the appellant doing that after a number of requests. 4. The appellant's version of the events spoke of seeing Mr. Williamson take a student in a headlock to bring him to the ground. He also spoke of seeing Johnstone tripping up his son to get him to the ground. The headlock and tripping were denied by Williamson and Johnstone, but Johnstone admitted to positioning his foot "adjacent to" the feet of the respondent's son. The appellant's evidence was that Mr. Johnstone gave his son a push and tripped him up to the ground, Mr. Johnstone coming down and "about the same time struck his knee straight into his chest." The appellant's evidence was that he "was shocked ... to see the headmaster do that. It put a bit of fear into me concerning my son's safety." He said that his son was making noises, "like it was hurting" and that he approached screaming at Mr. Johnstone to get off his son, placing his hands on both sides of Mr. Johnstone's jacket when Mr. Johnstone did not respond to his demand. His evidence about lifting Mr. Johnstone up is consistent with the evidence of Johnstone. In his extempore reasons for judgment, the magistrate said:-
    "The defendant has raised the issue of belief in a necessity to
    defend his ten year-old son against use of unlawful force by the
    headmaster of the Elizabeth Fields Primary School, Mr Johnstone.
    This issue having been raised, the onus is on the prosecution in
    proving this was not the case. Messrs Johnstone and Williamson
    gave a relatively mild account of an assault by Mr Branson against
    Mr Johnstone. There did not appear to me to be anything of the
    nature of gilding of the lily about the evidence of either of them.
    Both simply described a push, not even with closed fists but with
    open hands twice. Through their evidence, both presented as
    reasonable types of men and their accounts were consistent with one
    another. One obviously does not judge these matters on
    likelihoods, but it seems to me unlikely that a headmaster of some
    considerable experience, in front of other children, would strike
    his knee, causing pain, into a ten year-old child's chest with or
     without provocation. It is unlikely that another teacher would
    take the same course of action. On the defendant's account of what
    transpired, he observed nothing of a physical nature between his
    son and Mr Johnstone preceding what he has described as a pushing
    and kneeing of his child. The defendant has simply described the
    two parties facing one another prior to this drastic course of
    action being taken by Mr Johnstone. The Court must wonder why,
    under those circumstances, a headmaster would suddenly take drastic
    physical action of the nature described by the defendant that was
    immediately preceded by nothing other than the simple facing of one
    another. The taking of any physical action is more readily
    explained on the headmaster's version than the defendant's version.
    It is not for the defendant to prove or disprove anything. He
    bears no onus, but as the prosecutor has pointed out the court is
    entitled to bear in mind that neither the defendant's son, who is
    now aged eleven, nor the boy Adam Nelson have been called to give
    evidence despite the defendant's allegation of Mr Johnstone using
    excessive force against the defendant's son and the defendant's
    allegation of Mr Williamson using a headlock on the boy Nelson and
    swinging him on the ground. Moreover, the defendant's version as
    to the kneeing to the chest appears to me to have altered. The
    defendant, in examination-in-chief, said that Mr Johnstone pushed
    the child to the ground and Mr Johnstone then came down and struck
    his knees into the child's chest. At a later stage in his evidence
    he gave evidence of only the left knee being used in that incident.
    Moreover, it was suggested in cross-examination of Mr Williamson
    that Mr Johnstone's knee was in the child's back, which has never
    at any stage in evidence been suggested by the defendant. I am
    satisfied beyond all reasonable doubt of the accuracy of the
    version given by the prosecution witnesses and that they were
    acting reasonably in the circumstances in restraining the two
    children in the manner they have described. I am satisfied beyond
    reasonable doubt the defendant had no belief in the necessity to
    protect his son against lawful force. He was not aware of what had
    occurred prior to his intervention and had made no enquiries before
    he intervened. It is not the situation where he was encountering a
    stranger with his son. This was a situation where the headmaster
    was physically involved with the defendant's son on school grounds
    in the presence of another teacher who was physically involved with
    another child - circumstances where it would not be reasonable to
    assume that the headmaster was acting unlawfully. Consequently, I
    am satisfied beyond reasonable doubt that the defendant is guilty
of the offence as charged." 5. The principal ground taken on the hearing of this appeal is that the magistrate has misapprehended the correct test for the application of a defence of self-defence. I think that submission is correct and that the magistrate erroneously concentrated upon whether it was reasonable to assume that the headmaster was acting unlawfully rather than to ask whether the prosecution had excluded as a reasonable possibility that the accused genuinely believed in the need to use force and whether he believed the force to be necessary and reasonable. Reasonableness only attaches to the force used. The defence is available where the force the accused sought to repel was lawful. It is not confined to cases where that force was lawful or itself reasonable: R. v. Fennell (1971) QB 428; Zecevic v. Director of Public Prosecution (1987) 162 CLR 645 at 663. 6. The magistrate had to consider whether the appellant had a genuine belief as to the need to use force whether the principal's acts were lawful or unlawful. The finding that the defendant "had no belief in the necessity to protect his son against lawful force" is justified by the magistrate referring to his conclusion that "it would not be reasonable to assume that the headmaster was acting unlawfully." As Cox J points out in Hirschausen v. Brady Jt S3823 delivered 25 January, 1993: "The general test under s.15 looks not so much to what is necessary and reasonable but to the defendant's belief on the subject." 7. In this case I am not satisfied from the magistrate's reasons that he addressed his mind fully to all the implications of the s.15 defence. The question for him was whether the prosecution had excluded as a reasonable possibility that the appellant genuinely, even if mistakenly, believed that force was necessary and reasonable to defend his son. There was evidence before the magistrate with respect to brushes with authority involving the appellant and his son certainly earlier that day and perhaps on another occasion. Whilst the evidence with respect to the other day was not put to the prosecution's witnesses, the other evidence before the magistrate had to be rejected if the charge was to be proved. The magistrate needed to consider and make some findings about that evidence. It was of more significance than the fact that the appellant did not call the boys involved. Their evidence was not directly relevant to what the prosecution had to prove, - the absence of a genuine belief, however mistaken, that force was necessary to defend his son. I am left in the same predicament as Cox J was in Hirschausen. I am not satisfied from the magistrate's reasons that he addressed his mind fully to all the implications of the s.15 defence. The conviction must therefore be set aside and the matter remitted for re-hearing before another magistrate.