Wallace v Walker
[2002] WASCA 41
•6 MARCH 2002
WALLACE -v- WALKER [2002] WASCA 41
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 41 | |
| Case No: | SJA:1129/2001 | 7 FEBRUARY 2002 | |
| Coram: | WHEELER J | 6/03/02 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | GREGORY JOHN WALLACE STEVEN EDWARD WALKER |
Catchwords: | Justices Act Appeal Findings of fact open on the evidence Adequacy of reasoning Turns on own facts |
Legislation: | Nil |
Case References: | Wing Luck Foods v Lay Choo Lim [1989] WAR 358 Morris v The Queen (1987) 163 CLR 454 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
STEVEN EDWARD WALKER
Respondent
Catchwords:
Justices Act - Appeal - Findings of fact open on the evidence - Adequacy of reasoning - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr R A Mazza
Respondent : Ms J A Girdham
Solicitors:
Appellant : Mazza & Mazza
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Wing Luck Foods v Lay Choo Lim [1989] WAR 358
Case(s) also cited:
Morris v The Queen (1987) 163 CLR 454
(Page 3)
1 WHEELER J: On 26 April 2001 the appellant was convicted in the Court of Petty Sessions of one count of assault occasioning bodily harm. The appellant appeals against that conviction. The evidence on behalf of the prosecution was given primarily by Mrs Wallace, the complainant. She and the applicant were married and living together in Leeming on 17 December 2000. On the evening of 16 December the appellant went to basketball at Perth Entertainment Centre, while the complainant worked and then went home and watched a film on television. She had expected the appellant to come home a little after 10.00 pm but he did not do so. She went to bed at about midnight. Just before retiring she cleaned up the kitchen and put an empty wine bottle at the front door to be taken out later to the recycling. She went to bed and was almost asleep when lights shining in the bedroom window woke her. She thought that the lights came from her husband's vehicle and got up to check that this was correct. When the appellant opened the front door of the house the wine bottle clattered onto the tiles. She went to the front door, picked it up and said to the appellant words to the effect of "Go back to where you have been. This is a joke getting home at this hour." Despite the obvious inference from her conduct, she said that she was not angry with the appellant but only somewhat annoyed. She said that she walked out to the front door to put the bottle in the recycling bin, the appellant said something to her and then punched her with a fist twice to her face. The second blow knocked her off her feet and she fell into the garden, hitting the back of her head on a downpipe and the brick wall which it was attached.
2 The appellant, on the other hand, said that after the basketball he left the Entertainment Centre at about 11.00 pm and went to a tavern in Northbridge. He remained at the tavern for over an hour but had only one beer. Because he had not been to Northbridge for a while he then wandered around just looking at the area for about half an hour and got back into his car between 12.55 and 1.00 am. He then arrived home at about 1.15 am. He put his key in the door and opened it slightly when he was suddenly struck on the forehead by an object. He then recognised the complainant who came at him with a wine bottle, raising it to hit him again. In order to avoid being struck a second time, he pushed the complainant away with his left hand in a backhand action, hitting her in the face. He did not think he hit her with great force, but it was an instinctive reaction to get the wine bottle away from him. At the time he was wearing a watch with a metal band which may have hit her. She then lost her balance and hit her head on a downpipe, with her head ending up in the vicinity of some paving and "moss rocks" at the front of the house. He said he acted in self defence, not aiming for any particular part of her
(Page 4)
- head or body, but simply instinctively trying to prevent the bottle from hitting his head again.
3 Aspects of the evidence cast doubt on portions of the complainant's evidence and supported that of the appellant. She had made a statement to police in the early hours of 17 December 2000 in which she said that she had threatened to hit the appellant with the bottle and that she had endeavoured to physically stop him from coming into the house. At trial, she denied both of these propositions and said she could not recall making the statement and that she was in a distressed state at the time. There was evidence from the constable who took the statement to the effect that she did not appear to him to be particularly distressed when she made the statement and appeared to be coherent and to understand what she was saying. Further, there was a bump on the appellant's head which was observed by officers who attended on that morning. Her Worship noted both the inconsistencies and the evidence of the bump. Her Worship also found aspects of the appellant's evidence unsatisfactory, particularly in relation to his level of alcohol consumption in the period prior to the incident, and the reasons which she gave for that finding appear to me to be capable of supporting it.
4 Her Worship reached her verdict of conviction as follows. She said:
"Now the defendant emphatically denies using a clenched fist to strike Mrs Wallace, but the x-ray shows that her left cheek bone was fractured. Clearly her nose is swollen, there is a laceration to her forehead, there are lacerations to the bridge of her nose, to her lip, to her chin, to her upper chest area, which are to the central portion of her body rather than to the left hand side.
If I accept that the defendant struck one blow only, with the back of his hand, then a question arises as to why she has a large bruise to her jaw and to the angle of her jaw. Her cheek bone was broken, her eye has been cut and also her forehead and the upper part of her chest, all in one movement. I'm satisfied that more than one blow was struck to occasion the extent of these injuries."
- Her Worship then set out the first paragraph s 248 of the Criminal Code.
"Now, if I accept the defendant's version, that as he went to enter his front door he was struck by a person unknown with an unknown object to the head, and he then stumbled back, and went outside the house, onto the verandah area. Then, if I
(Page 5)
- accept that his wife then came out, wielding a bottle, and rushing at him, raising the bottle to strike him and he raised his arm to ward off the bottle, I must look at whether or not this was such force as was reasonably necessary to make an effectual defence against the perceived assault.
The evidence is that the parties are of considerably different heights, which has been apparent in court. Mrs Wallace testifies that she is 4 foot 9 inches, her husband if 5 foot 11. I have not heard that challenged. The husband is considerably taller than the wife. He was outside the house. It would have been, I would have thought, a relatively simple matter for him to distance himself from the oncoming wife with the bottle, but he seems to have taken no steps to do that. Now, I have found as a fact that he has struck her with a fist twice to the face, causing an injury shown in the photograph.
I am satisfied that he did not use such force as was reasonably necessary to make an effectual defence, but has used excessive force. He had other options open to him. And as a result I'm satisfied that the defence of self-defence is not available to the defendant."
5 The grounds of appeal are that:
"2.1 The learned Magistrate erred in holding that self defence pursuant to the first paragraph of section 248 of the Criminal Code was not available;
(a) The learned Magistrate erred in fact by finding that the injuries to the complainant must have been caused by two blows struck by the applicant.
(b) Even if two blows had been struck by the applicant to CAROL WALLACE it does not follow that such force would have been excessive in the circumstances of the case.
2.2 In relation to the finding by the learned Magistrate that it would have been 'a relatively simple matter for him to distance himself from the on-coming wife with the bottle' (transcript page 24);
(Page 6)
- (a) The learned Magistrate erred in law in that her finding implies that the first paragraph of section 248 of the Criminal Code contains a requirement that a person under attack must retreat before being entitled to repel the attack when no such requirement in fact exists in the section.
(b) The learned Magistrate erred in fact by finding that it would have been 'a relatively simple matter for him to distance himself from his on-coming wife' when in truth no such evidence was before the court.
(c) The learned Magistrate failed to take into account the uncontradicted evidence of the applicant and Constable Walker to the effect that the applicant had a lump on his head shortly after the alleged assault which evidence was consistent with the testimony that the applicant gave that the applicant had been struck by CAROL WALLACE with a wine bottle.
- 2.3 In assessing CAROL WALLACE's credibility as to whether she was the aggressor and whether she had struck the applicant with a wine bottle to the head, the learned Magistrate failed to take into account inconsistencies between the complainant's testimony at trial and her statement made to police on 17 December 2000.
2.4 Having regard to the totality of the evidence the learned Magistrate's rejection of self-defence pursuant to the first paragraph of section 248 of the Criminal Code was contrary to the evidence and plainly unreasonable."
6 Counsel for the appellant agreed that ground 2.4 was really no more than a conclusion which was said to follow from the particular matters in the preceding grounds, and it is therefore in my view unnecessary to deal with it separately. It is convenient to take the other grounds in reverse order.
(Page 7)
Grounds 2.3 and 2.2(c)
7 It is clear from the passage which I have quoted from her Worship's reasons that her Worship's finding was that even if the appellant had been struck on the head by the complainant, he was nevertheless not acting in self-defence because of the excessive force used. That is, she proceeded in that respect on the view most favourable to the appellant. These grounds are not made out.
Ground 2.2(b)
8 It seems to me that the finding that it was open to the appellant to retreat was not itself a fact about which evidence should have been given, but was a matter of inference. Her Worship had before her evidence as to the parties' relative size, their state of sobriety, their relative positions at the time of the incident and the layout of the front of the house where these events took place. In my view, it was open to her on that evidence to find that retreat by the appellant was possible. It was submitted to me that that her Worship should have raised the question of retreat prior to delivering her reasons, so as to give the appellant – or at least his counsel during the course of submissions – the opportunity to comment on it. If it had been an issue of importance in her Worship's mind at or before the time of submissions being made to her, that course obviously would have been desirable and no doubt would have been followed.
9 However, it appears to me that this is a not unusual case in which two distinctly different versions of events were put to the tribunal of fact, neither of which was in the end wholly accepted. On neither the prosecution case nor the appellant's case did the issue of retreat really arise; so far as the prosecution was concerned, this was an attack in which the appellant was always the aggressor, while so far as the defence was concerned there was only one, instinctive, blow so that the question of retreat (which I would assume her Worship considered arose between the time of the first and second blows) could not have arisen. Assuming it was open to her Worship to find the facts which she did (an issue raised by ground 2.1) then it seems to me that it was appropriate for her to consider the issue of retreat, notwithstanding that, because it did not arise on either of the two conflicting accounts from the witnesses, it had not been canvassed by counsel.
(Page 8)
Ground 2.2(a)
10 I do not read her Worship's observation about retreat as implicitly holding that the first paragraph of s 248 requires that a person under attack must retreat before being entitled to repel an attack. However, the section does direct attention to the question of whether the force used was reasonably necessary to make an effectual defence against the attack. It was conceded by counsel for the appellant that an evaluation of all the circumstances surrounding the predicament of the person attacked is required in order to answer that question, including an examination of whether the attack could have been avoided without the use of any force, by retreat. In my view, her Worship's observation was directed only to that issue.
Ground 2.1(b)
11 The question of whether the force used was excessive in any case is one of fact and degree. While it must always be remembered that persons acting in a situation of sudden crisis do not have time for calm reflection, her Worship's finding that two blows represented excessive force in the circumstances appears to me to have been a judgment reasonably open to her. This is particularly so, if it was accepted that two blows were delivered as the complainant described; that is, separated by a brief interval during which she was able to steady herself after the first blow, before the second knocked her to the ground.
12 The factors influencing her Worship in this case appear to have been the discrepancy in size between the parties, the availability of the option of retreat, and the circumstance that, while a first blow may well have been an instinctive reaction to attack, it is not so easy to see a second in that same light. It is I think fair to observe that there is a distinct difference between the situation of a person suddenly attacked who instinctively, and with one forceful movement, fends off the attack (essentially the appellant's evidence) and the situation of a person who in effect goes on the offensive, by not only fending off an attack but by inflicting an additional blow on his smaller attacker.
Ground 2.1(a)
13 This, in my view, is the most difficult issue. If one looks, as her Worship did, at the photographs of the complainant's face and cheek, it is very difficult to accept that one blow, even if there was some scratching by a watch worn by the appellant, could have caused not only
(Page 9)
- the extensive bruising to the complainant's face, from the eye to the jaw, but also, simultaneously, lacerations of the outer edge of the left eye, the centre of the chin and high on the forehead towards the centre of the face, together with some apparent grazing under the jaw at the left side. Her Worship was not assisted by medical evidence as to the probable causation of any of those injuries, and it plainly would not have been appropriate for her to form conclusions based on the distribution of bruising. However, grazing is caused not by internal bleeding but by direct contact between the skin and some object and it was in my view open to her Worship to consider the distribution of the grazing on the appellant's face as representing either contact with more than one object or more than one contact with the same object or objects. However, having found that the injuries to the complainant's face were not caused by one blow only, it appears to me that there were then three possibilities open to her Worship.
14 The first possibility was, as submitted by the appellant, that the injuries may have been caused by either the sharp edge of the paving or the moss rocks in the area where the complainant fell. There were photographs of this area before her Worship. Those photographs have unfortunately been lost, but one photograph of a similar type to those tendered has been shown to me. The photograph shown to me is not inconsistent with the hypothesis contended for by the appellant, but neither does it appear particularly to support that hypothesis. The photographs tendered to her Worship may have been of more assistance but unfortunately they are not referred to in her Worship's reasons.
15 It seems to me that the exclusion of this hypothesis could have occurred in one of two ways. Either her Worship's view of the way in which the complainant fell, taken from the evidence of both the complainant and the appellant and from her viewing of the photographs, might have led her to the view that the complainant could not have fallen in a way which would account for those facial injuries. Alternatively, she might have accepted the evidence of the complainant as to the two blows, notwithstanding that she had apparently rejected portions of the complainant's evidence concerned with how the incident began.
16 The second possibility was that although the appellant's evidence was truthful so far as he could recall, it was not entirely accurate, and that his instinctive reaction on the spur of the moment had included a movement in which his hand or arm connected more than once with the complainant's face. The third alternative was that the blows were as the
(Page 10)
- complainant described them; that is a first blow, followed after a very brief interval by a second and deliberate blow.
17 Depending on the view taken of the exhibits and of the evidence of the two principal witnesses, it seems to me that any of these findings would have been open to her Worship. Her Worship arrived at the view that the third of these possible alternatives had been proved beyond reasonable doubt.
18 There are potentially two ways to explain her Worship's conclusion. The first, contended for by the respondent, it that her Worship did so as a result of her assessment of the credibility of the two principal witnesses in relation to this point (or, perhaps, on an assessment of the photographs of the scene). If that is so, then it seems to me that it would not be open to me to find that her Worship's view was so "glaringly improbable" that this Court should intervene: Wing Luck Foods v Lay Choo Lim [1989] WAR 358.
19 The other alternative is that, although the possibility of a grazing caused by the paving or the rocks was urged upon her Worship during the course of submissions, that she momentarily overlooked that possibility. This is the view of her Worship's reasons contended for by the appellant. The question causes me some difficulty, since it seems to me unlikely that an experienced Magistrate would overlook such an issue which had been so recently canvassed before her. However, even the most experienced judicial officer may temporarily overlook a fact of importance, particularly in the course of extempore reasons in a busy court. Further, it is to be noted that her Worship did not refer at any time during the course of her reasons to the possibility of injury caused by paving or rocks. In particular, immediately before her finding that more than one blow was struck, her Worship referred in detail, and referred only, to the medical report of the complainant's injuries and to the photographs depicting them. That portion of the reasons creates the distinct impression that those matters have satisfied her Worship as to the existence of more than one distinct cause of injury, but there is no suggestion at that point, or indeed at any other point in the reasons, that her Worship went on to consider the possibility that those distinct injuries were not necessarily caused by distinct blows delivered by the appellant.
20 It is not the case that every step in a Magistrate's reasoning process must be set out, provided it is sufficiently clear that he or she had the relevant evidence in mind, and that the essential facts necessary for a conviction are found. In this case, the difficulty is that the "essential fact"
(Page 11)
- was that there had been at least two blows. Her Worship appears to have been satisfied only that there were at least two injuries and it does not appear from her reasons why it followed that the cause could only have been two blows.
21 For the reasons given, it appears to me that this conviction must be quashed. However, as I have noted, it appears to me that a conviction may have been open, depending upon the view taken of the credibility of the two principal witnesses. For that reason, it appears to me that the appropriate course would be to quash the conviction and order the matter to be remitted for rehearing before another Magistrate. However, I will hear counsel as to the appropriate orders to be made.
0
1
1