HIS HONOUR: This is an appeal against two convictions recorded by Mr W Pierce LCM sitting in the Local Court at Burwood on 21 November 2014. The appellant was charged with two offences contrary to s 53 of the Crimes Act 1900. Section 53 is one of the original provisions of that Act and appears never to have been amended. It is in the following terms:
"Whosoever, being at the time on horseback, or in charge of any carriage or other vehicle, by wanton or furious riding, or driving, or racing, or other misconduct, or by wilful neglect, does or causes to be done to any person any bodily harm, shall be liable to imprisonment for two years."
This offence is a Table 1 offence under the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment. When the matter is dealt with in the Local Court, the maximum penalty which can be imposed is 12 months' imprisonment. I shall need in due course to return to the terms of the statute.
The circumstances which gave rise to the charges arise out of a civil dispute between the appellant, Mr Askin Aslan, and one of the two persons who are alleged to have been the victims of the charges, Mr Houssein Bazzi, who is generally referred to as Sam Bazzi. In April 2012, Mr Bazzi purchased a red Mazda RX8 motor vehicle, registered number BLQ 60R. He bought it on eBay for $15,000. Having purchased the car, Mr Bazzi perceived that there was a problem with the car's engine. He sought out a motor mechanic to repair the vehicle. He selected E Breathe Easy Solutions Pty Ltd trading as The Edge Tune & Race of 51 Crystal Street, Petersham. The appellant is a mechanic employed by that business. It would appear that Mr Bazzi bailed the vehicle to the repairer on or about 20 June 2012. That is the date of a quotation which became exhibit 4 before me. In the description of the work to be performed the following has been inserted:
"Remove and rebuild engine and afterwards look at ECU problems that caused engine failure - talked about $8,000 for engine only, but price depends on strip down[.]"
Mr Bazzi agreed with that quotation and signed it. Either on that day or some time shortly thereafter the vehicle must have been bailed to the repairer.
On 22 November 2012 the repairer generated an invoice directed to Mr Bazzi. It billed $14,400.10, that is, the total cost of the repairs carried out by the repairer. In the meantime, Mr Bazzi had paid a "deposit" to the repairer of $5,000. According to Mr Bazzi's evidence, the repairer demanded an upfront payment in light of the amount of work that needed to be performed on the red motor car, to which I shall hereafter refer merely as "the red car". When the invoice of 22 November 2012 was raised, it became clear that Mr Bazzi was indebted to the repairer in the sum of $9,400.10.
A dispute then arose. According to the appellant's evidence-in-chief:
"He [Mr Bazzi] was willing to give $7,000 and he owed $9,400 because there was $2,400 worth of extra parts on there that his friend, Michael Corti, had believed[,] because he was a parts interpreter[,] he could have gotten it cheaper. I said, 'Well, you should have done that before we actually went to the bother of getting it and putting in the car which your friend has already agreed to'. They said they were willing to take the car without those extra parts, but they were already here."
Mr Michael Corti is in fact a spare parts interpreter by occupation and clearly an acquaintance or friend of Mr Bazzi. After this dispute arose there were numerous interactions between the appellant, and Mr Bazzi and Mr Corti. According to Mr Corti there were over some 15 interactions over a period of at least a year. According to Mr Bazzi he visited the repair shop on 10 to 15 occasions.
There were then proceedings in the Consumer Trade and Tenancy Tribunal (CTTT) which has now become part of NCAT. Those proceedings were commenced by Mr Bazzi. In those proceedings, the appellant claimed, in addition, $16,000 in storage fees, and the total cost of his claim or counterclaim against Mr Bazzi exceeded the jurisdictional limit of the CTTT. Those proceedings were finalised before the relevant events. The end result of the finalisation of proceedings in the CTTT/NCAT was the commencement of proceedings in the Local Court. However, the evidence is unclear as to whether they were fresh proceedings or merely the transfer of the CTTT proceedings to the Local Court. On the evidence before me, the civil proceedings in the Local Court have not been finalised.
On or about 18 or 19 May 2014 (see transcript p 54 line 25), Mr Bazzi received a communication from the City of Canterbury. The communication was under the hand of Maureen Carey, who described herself as the Regulatory Control Administrator of the Council. Her communication bears date 14 May 2014. The communication was addressed to Mr Bazzi because as far as the Council was aware Mr Bazzi was the owner of the red car. The opening paragraph of the communication is this:
"We have been advised that you are the Owner of the abandoned/unattended/unregistered motor vehicle as described below and notice is hereby given in accordance with Section 16 of the Impounding Act, 1993 that council intends to impound the subject vehicle."
The next paragraph states the vehicle had been abandoned and was considered a danger to the public. The communication required Mr Bazzi to remove the vehicle from its then location by 25 May 2014 and to dispose of it in a proper manner and not to relocate it elsewhere in a public place. The Council went on to advise that, if that did not occur, the vehicle would be taken away for disposal or destruction and that Mr Bazzi will be liable to a fine of $550.
The vehicle was described as being located outside 15 Shaw Avenue, Earlwood. Living at 13 Shaw Avenue, Earlwood was the former wife of the appellant, Ms Birben Aslan. She was living there with her two children, who are also the children of the appellant. Their children were then aged two and three. By "then" I mean at the relevant time. There was no communication between Mr Bazzi and Mr Aslan about the notice that he received from the Council.
Mr Bazzi arranged for a tow truck to collect the vehicle on the date the offences are alleged to have occurred, 23 May 2014. He arranged for a tow truck to attend Shaw Avenue and to take the car and to tow it to some place that the evidence does not disclose. The first tow truck operator who arrived there was named Darren. When he arrived in Shaw Avenue and approached the red car a lady, who undoubtedly was the appellant's former wife, remonstrated with Darren that he had no permission or authority to tow the vehicle away. It is clear from Ms Aslan's evidence that he was polite to her and acceded to her direction not to remove the vehicle. He left and it is clear that he spoke to his employer, and there was probably further communication between the owner of the tow truck business and Mr Bazzi. According to Mr Bazzi's evidence Darren had told him he was unable to tow the red car and he, Mr Bazzi, rang the owner of the tow truck business and arranged for another tow truck operator to attend Shaw Avenue and pointed out that Mr Bazzi was going to go down to where the red car was, no doubt, to sort out the dispute between the lady and the tow truck business.
Mr Bazzi went to Shaw Avenue in the company of Michael Corti. They went there in a black Mazda 3 motor vehicle, registered number 84ZZI, I shall refer to this vehicle merely as the black car. Ms Aslan said that the red car had been at or outside her premises for "a few months". She said that the car was parked "there" meaning, I infer, on the street and she was keeping watch over it because it was parked in her street and her former husband had asked her to keep an eye on it.
Ms Aslan gave the following evidence as to what occurred after Darren had departed:
"Q. So what happened then?
A. I sat at the front of the house just to keep an eye on the street, just to make [sure] no one else coming into the street anyone else coming to try and take the car. So I sat there for about maybe five to ten minutes before I noticed a black car turning right into the end of my street and they were turning really slowly. It was a really sharp turn and they parked right at the end of the street and that caught my attention because I thought it was a little bit odd, the way they were driving.
Q. Do you recall what type of vehicle that was?
A. It was a black car which later on when it moved up I realised it was a black Mazda with black number plates and red writing.
Q. Yes, what happened then?
A. I started getting a little bit worried. I could see two figures in the car, I couldn't make out exactly who they were. The car sat there for a little while and after about five to ten minutes it slowly drove up. There was no other cars parked along that side of the street and it slowly drove up and stopped right behind the red Mazda. That's when I realised that these - the gentlemen in the car were here for the car.
Q. Well, if you just tell us what you saw, saw, heard and said?
A. Okay, so they were sitting in the car and I walked up with my phone just to take - walked along the footpath just to take a few snaps because I thought just so I've got evidence on who these two men were [,] trying to steal the car."
What may have caused Ms Aslan to believe that the two men in the black car were going to "steal the car" is a matter of inference. She went on to give evidence about the occupants of the black car:
"They were mouthing things. I couldn't really hear exactly what they were saying and they were just staring at me and giving me death stares and I felt quite intimidated and scared at that point because I was on my own and my neighbour didn't want to know about it and wasn't willing to stick around and help me. Shortly after that I think at that point I contacted Askin and I said, 'Askin, there's a car here with two men in the car'. I said, 'I'm really scared'. I think at that point he said, 'It must be the owner of the car'. He said, 'I'm not far, I'll be here shortly'. Within a few minutes Askin arrived. He got dropped off by a friend or someone and then walked up to the car."
By the last noun Ms Aslan was referring to the black car.
There was then an ongoing interchange between the appellant and Mr Bazzi and Mr Corti, some of which was overheard by Ms Aslan and some of which has been recorded on moving film taken on Mr Corti's camera. It is abundantly clear that the appellant believed that Mr Bazzi and Mr Corti had come in order to have a tow truck tow the vehicle out of Shaw Avenue to some destination intended by Mr Bazzi and that the appellant believed that they were doing so in order to defeat his repairer's lien over vehicle. That lien is properly described as a "possessory lien" although Ms Aslan described it as an "accessory lien" and the word "lien" is sometimes misspelt.
There was ill will between the appellant and Mr Bazzi and Mr Corti. Mr Bazzi and Mr Corti could not move the red car. There was only one set of keys to that car and those keys were held by the appellant. The appellant had affixed to the gearshift of the red car what I would refer to as a gearshift lock but is referred to in the evidence as a "club lock". There is no suggestion that a key to the club lock was given at any time to Mr Bazzi and Mr Corti. Accordingly, the only way that the vehicle could be moved by Mr Bazzi and Mr Corti was if they broke into the vehicle, broke the club lock and hotwired the car or if they had arranged for another tow truck to arrive to tow the vehicle, which is, indeed, what Mr Bazzi had intended.
The vehicle was in no imminent danger of being removed from outside 15 Shaw Avenue, Earlwood until a tow truck arrived. If another tow truck did arrive the appellant could have explained his position to the tow truck driver as being the repairer of the vehicle exercising a possessory lien over the vehicle since his cost of repairing the vehicle had been unpaid.
I leave to one side the propriety of a repairer of a vehicle claiming the expenses of storing a vehicle over which he was exercising a possessory lien without any contractual right to do so and also the propriety of storing a vehicle in the possession of the repairer outside the house, on a public street, of the former wife of an employee of the repairer. One could be forgiven for thinking that storing the red car in such circumstances was beyond the authorisation implied by law to keep possession of the vehicle prior to releasing it when the repairer's bill was paid, and quite inconsistent with the rights of the lawful owner.
Fortunately, the relevant acts or most of them have been recorded on film taken on Mr Corti's phone, which was exhibit 3 before the Local Court and is exhibited before me. When Mr Corti's phone was interrogated by the police, the police downloaded six film clips. They are numbered 883, 884, 885, 889, 890 and 891. The first five of those six video footages are very short, a matter of a few seconds each. However number 891 rolls for about 25 minutes. Clearly when the phone was interrogated the films which would have been numbered by the phone itself as 886, 887 and 888 were missing. It is quite inconceivable that they were taken of some matter other than the interaction between the appellant and Messrs Bazzi and Corti. The inference is clear that they were deleted and the person by who they were deleted could only have been Mr Corti. Why they were deleted the evidence does not disclose but an inference can be drawn that they may have displayed conduct which Mr Corti and or Mr Bazzi could have regretted or been ashamed of.
I take narrative events from evidence given by the appellant. In his evidence-in-chief he said this:
"A. On the 23rd when I got there I just went up to my ex first of all just to say, "look I know who these guys are". Then - it was either one or the other. I either went one way or the other but I basically approached them in the car and I explained to them that:
"We have a possessory lien over the vehicle. Like you know the Court date is set, take it to Court, your got all your paperwork, you've tried to steal it before from the workshop, you're trying to steal it again now."
They're like, "Have you got the rego papers, it's not your car". You know there was a verbal exchange there. I just said, "Look, you've got a lawyer, you've got a Court date, you've got your paperwork and I'll see you in Court, I'll see you there."
Q. So there were three people standing around the car?A. At that point I was at the car. There was the two, Sam and his friend Michael, they were both in the car. My ex was hovering around the situation but I wasn't really focussed on what on where she was and also one of the neighbours was out the front, our actual next door neighbour, I noticed him as well.
Q. So you had a verbal altercation with these people?
A. Yeah, it was. I don't know if it was an altercation, I was just pressing my position. He put his finger up at me.
Q. Were there any threats made to you?
A. At that stage did he threaten me? Probably not, probably not at that stage."
The magistrate then took a short adjournment. The evidence then continued thus:
"Q. Do you recall sitting in the red Mazda?
A. Do I recall sitting?
Q. Recall sitting in the red Mazda?
A. Yes.
Q. Do you recall Mr Bazzi and Mr Corti standing outside the red Mazda?
A. Yes I do.
Q. And what do you recall them saying anything, threatening or intimidating to you at that point?A. Definitely. Mr...
Q. Could you just speak up a bit?
A. Sorry, Mr Bazzi at that point - just before he sat on the car then he's like, "What are you going to do about it pussy, what are you going to do about it shit head?" And when he came up to the car he goes, "You're fucked now cunt. We're going to fuck you up now cunt". Like I think he felt he can understood that I was scared at that point and then he said that he came inside and he flicked… he flicked my head, he flicked it.
Q. He physically touched you?
A. Yes. He definitely touched me, like he hit me and then my ex walks up and goes, "Hey you know, what are you doing?" She saw it. And he stomped his foot at her and he swung his arm, went like that and then he, at the same point he opened up the back door and goes, "Look how dirty my car is you shit cunt" and he just spat at me at that point as well. And then I'm like, "You've got the paper", I just kept saying the same thing, I didn't know what to say because I just kept repeating myself like it wasn't getting through to him, "You've got the paperwork, you've got the, you've got everything, I'm calling the cops, you know", …(not transcribable)… you know then Michael walking around, "We've been waiting for too long you cunt, waiting two years dickhead", you know…"
The appellant then went on to say that he felt threatened, more than threatened, he felt afraid.
That description omits certain matters. Prior to getting into the red car the appellant had retrieved a bag, opened the car, popped the bonnet and performed some procedure at the front of the car which was clearly designed to either charge the battery or put the battery into operation. Having completed that, the appellant then lowered the bonnet of the vehicle and entered the vehicle and removed the club lock. It is clear that he placed the key into the ignition of the vehicle. Everything points to the appellant's attempting to drive off in the vehicle, to remove it from the vicinity of Messrs Bazzi and Corti.
It appears to be common ground that Mr Bazzi opened the rear driver's side door of the red car to inspect it to ascertain its cleanlines. He reached into the vehicle momentarily. That is when the appellant says that his head was flicked. It is shown on the video. The action of Mr Bazzi was extremely brief. He may or may not have touched or flicked the back of the appellant's head. There is no suggestion that the appellant received any hurt, injury, no suggestion of even any transient, momentary pain. If there was such contact between Mr Bazzi's hand and the back of the appellant's head it could only have been cursory and could well have been accidental. It was a trifling event. Although both the appellant and his wife gave evidence of the spitting, nothing of that nature can be seen on the video film and there is no suggestion that it was on any of the three video clips that were deleted. Mr Aslan says it occurred at the same time or shortly immediately after the flicking of his head.
Both the appellant's actions and the video film clearly indicate that the appellant wished to put the vehicle into motion and drive it away so that it could not be towed by a tow truck which had yet to arrive. The appellant's former wife then entered a vehicle parked in front of the red car and moved it forward. She said she moved it forward in order to put it closer to her front door and she wished to do that in order that she and her two children could get into the car which she had moved and leave the scene, because she feared for the safety of herself and her two children. Equally, it appears to have been a procedure that could have been designed to promote the easy driving of the red car from its parked position onto the driving lane of Shaw Avenue. It could be seen as a procedure that would have expedited the appellant's driving off in the red car.
It is abundantly clear that Messrs Corti and Bazzi both believed that the appellant was about to drive off. By that stage the engine of the vehicle was running, it had been running since the interaction of the appellant and Mr Bazzi on the driver's side of the vehicle when Mr Bazzi opened the rear driver's side door. Perceiving that the appellant was about to drive off in the red car, Mr Corti and Mr Bazzi both left the black car and its immediate environs and went to the front of the red car and rested their buttocks on the front of the bonnet of the red car with their feet on the ground. Put in blunt terms, they sat on the bonnet of the car. It is clear they did so to prevent the appellant's driving away. However, drive away the appellant did. Mr Corti gave this evidence:
"A. When Sam had come around the front and met me[,] next to me I then completely stood up instead of leaning on the vehicle. Then I looked at Sam and all of a sudden we were pushed back onto the bonnet and I felt the bumper bar of the RX8 push against the back of my knees which linked [sic] me falling onto the bonnet and seeing Sam fall onto the bonnet as well. The vehicle had taken off. I remember hearing screeching tyres.
Q. Screeching tyres?
A. Yes.
Q. From which car?
A. From the RX8.
Q. What happened?
A. We had then been moving forward, veering out to the right to the middle of the road with us still on the bonnet of the RX8 approximately 10 metres possibly. I had slid over to the left hand side of the bonnet leaning onto the side guard from which I realised was a view to the right of the vehicle. As I sort of roared off I tried to grab something and grabbed the windscreen wiper. I then rolled to the left. I fell onto the ground and kept running. I then looked forward and saw the vehicle continue up the street.
Q. Where was Sam at the time?
A. Sam was still on the bonnet. I then started to run to try to chase the car. I screamed, "Stop." Sam tried to get off and then I saw the car, the back end of the car swerve to the right but the front was to the left and Sam had slipped off onto the bonnet towards the right with his legs up in the air and his lower back hitting the road first."
Mr Corti, the correct title of whose occupation was "automotive parts interpreter", estimated that the speed of the vehicle when he came off the bonnet was between 20 to 30 kilometres per hour and that the at the time that Mr Bazzi left the bonnet of the red car is speed was about 70 kilometres per hour.
Many criticisms were made by the appellant in his submissions to me about the credibility of both Messrs Bazzi and Corti, in particular their insistence that they were standing at the front of the red car when the red car was put into motion, but such criticism, to me, is of little moment. They clearly had their buttocks on the front of the bonnet and their feet on the ground when the car took off, that can be seen in the video film. If there be any issue as to credibility I must be guided not by mere inconsistencies in the evidence, but also the view formed by the learned magistrate, as to the reliability of the witnesses. The learned magistrate clearly had doubts about the reliability of the appellant and his former wife. He said in his very brief reasons this:
"I do not find that the RX8 towards the end when Mr Bazzi came off, actually stopped in an extreme hurry, putting an emphasis on the adjective or adverb extreme, I think it was not accurate to describe it as a gentle stopping as both the defendant and his ex-wife said, it was something in the middle but he'd taken off rather quickly, quite quickly."
Later on the learned magistrate said this,
"I am prepared to accept that there may have been a flick on his [the appellant's] head, but I am uncertain about the spitting, so I will not make any decision about that."
He was prepared to accept as a possibility that there may have been a flicking of the appellant's head but was not even prepared to make such a minor finding in favour of the appellant and his wife of their descriptions of Mr Bazzi spitting at the appellant. In other words, the only evidence as to credibility is against the appellant and his wife, not against Mr Bazzi and Mr Corti. However much criticism can be levelled at them at the type of conduct in which they engaged.
In the defence case, evidence was adduced from an expert that it is possible for the audio on a video clip to be unsynchronised with the visual recording itself and for a visual recording to be speeded up, albeit that the audio recording is not. Submissions were put to me on the first day of this hearing when the appellant was represented by Mr Becker that the video film of the relevant event may have been increased in speed. I reject that submission. The video film of the last 25 minutes, the file numbered 891, records a normal speed of voice, a normal speed of walking, a normal speed of talking. There is absolutely nothing to suggest that the speed of it has been increased. If it were increased, it could have only been to some very minor extent. Nevertheless, I played the relevant part of the film at half speed and it still shows the red car taking off at speed with screeching tyres and a puff of smoke, and then being driven at a very fast pace.
The video clearly shows the brake lights of the red car being applied momentarily, at which time Mr Corti, who was on the left-hand side of the bonnet, came off the vehicle, landing on one of his legs, I believe it to have been his left leg, and then the car veered to its right, increasing speed, and then was jerked to the left, causing - I make that finding deliberately - Mr Bazzi to be thrown off the bonnet of the car, landing on his back on the carriageway of Shaw Avenue. One could be forgiven for thinking from watching the video itself that the braking of the car momentarily was designed to throw Mr Corti off the bonnet of the vehicle, and the swerving of the vehicle further on was designed to thrown Mr Bazzi off the bonnet of the vehicle. However, it is not necessary to make such findings.
The learned magistrate said this:
"There can in my view be no doubt that the driving was furious or wanton, specifically one might say furious. That is not because it was enormously high speed or something like that, which many are, but because almost any speed is pretty dangerous when you have people sitting on the bonnet."
His Honour then made the remarks about the red car stopping that I have earlier quoted in which he said that it was not accurate to describe it as a gentle stopping. He then refers to the speed of the vehicle as being in mid‑range and pointing out that he had taken off "quite quickly." He then said this,
"There was a blowing of dust and a roar of the engine and off it went. Corti was lucky to get off as he did without injuring himself any more than he did, and plainly he did injure himself when he landed on the pavement. That is the only reasonable inference."
By the word "pavement", I infer the learned magistrate was referring to the bitumen of the carriageway rather than the footpath, pavement being a word used by many to describe either a footpath or a footway.
The appellant admitted today that his driving was dangerous. He accepts that it was dangerous to drive off with two people sitting on the bonnet of the car. However, he submitted that his driving was not furious.
In the Local Court a defence of self-defence was raised, but the learned magistrate held that the prosecution had successfully negatived beyond reasonable doubt any notion of self-defence or defence of the vehicle. However, having said that, he did not give any reasons for making those findings.
Yesterday the appellant, who determined the retainer of his solicitor, submitted that he was entitled to raise the defences of necessity or duress. The argument advanced is that when Messrs Bazzi and Corti got out of the black car and came up to the red car and there was interaction between Mr Bazzi and the appellant on the driver's side of the vehicle, and Mr Corti went round the left side of the vehicle before sitting on the bonnet, he was put in fear of death or grievous bodily harm. That there were insults and the use of foul language is patently clear. That there were claims and counter-claims is basically clear. For example, the appellant at no time indicated to Mr Bazzi that he was exercising a possessory lien but rather protested that he was the owner of the vehicle. Such a protest made to the true owner of the vehicle would, one would expect, be met with derision. It was. Clearly there was bad blood between the three men. However, there was no attempt at punching, no attempt to restrain the appellant, no attempt to pull him out of the car, no attempt to grab the keys of the vehicle out of the car, nothing of the nature which indicated that some oral threat might be put into action. The appellant says that he was put in fear of his life or wellbeing and the life or wellbeing of his former wife and children by the conduct of the alleged victims, Mr Bazzi and Mr Corti. That their conduct was loutish and boorish is beyond question. However robust their interchanges were with the appellant, there is nothing to suggest that they would put any oral threats into action.
At the commencement of the cross-examination of the appellant by the prosecutor, the following evidence was given.
"Q. So at the [CTTT] you reckon that Michael was Mr Bazzi's muscle man?
A. Well that's what I called him.
Q. That's what you called him or did he introduce himself as a muscle man? All right, did Mr Bazzi introduce you to Michael as the muscle man, yes or no?
A. No.
Q. So it's more - it's what you think in your head, is that what you think in your head?
A. Well no - I've got reasons for thinking that way.
Q. What's the reason?
A. The reason I think that way because he was always - like Sam wouldn't do anything, and Mike was like the muscle guy, he'd do all the swearing, he'd do all the intimidation, he's the one that was sent to steal the car, he's the one who had the argument in the shop. Every time there's a problem Sam brings Michael along. Every situation, doesn't come by himself, he comes with Michael and then Michael does all the rough work and I just - I always used to tell my boss, he's come with the muscle man again, you know, trying to intimidate us.
Q. So it snowballed then, you thought that he may be a muscle man?
A. Sorry?
Q. It's not confirmed?
A. Well he didn't tell me, he didn't say this is my muscle man.
Q. So - but anyhow, because of the incident at the tribunal you have concerns for them - you have concern of your safety if you see them again?
A. He was threatening but I didn't know how far this guy was going to go.
Q. After the day at the tribunal you [are] scared of them?
A. I thought he was putting on a bit of an act..."
The appellant then admitted that he was not scared of them at the CTTT. He went on to say that he only became scared of them when they got out of the black car and approached him when he was sitting in the red car.
If one accepts what Ms Aslan said, the appellant believed when she told him of the arrival of two men in the black car, pulling in behind the red car, that they were Mr Bazzi and probably Mr Corti. The appellant would realise that as soon as he arrived in Shaw Avenue and saw them in the black car. He does not appear to have been frightened of them at that time. He then went about the process of putting the car into operation, such that he could drive it away. He persisted with that course of action. He put himself closer to the two men whom he asked me to believe caused him fear for his life and safety. If he had any fears about what they might do when he arrived at Shaw Avenue he could have gone into his former wife's house, locked the door and called the police. He did not do so. He put himself closer to the two men. If he became scared of them when they got out of the vehicle he could have locked himself within the red car and if they wished to gain access to him they would have been required to do something such as smash the window or windows or windscreen, which one would not expect the true owner of the vehicle to do. There was no attempt by the appellant to flee. Much earlier on, in interaction between the appellant and the two other men, the appellant threatened to call the police and he was encouraged to do so by Messrs Bazzi and Corti. He did not. The appellant asked me to believe that he encouraged his wife to call the police, but her evidence was that she could not make contact with 000, a protestation which is extremely difficult to accept. The evidence does not show any objective basis for the appellant honestly to believe that he feared for his life or safety or indeed for the safety of his former wife and their children. It would have been very easy to have left the red vehicle when Messrs Bazzi and Corti got out of the black vehicle and to run back to his former wife's home, lock himself within it and dial 000. He did not.
True it is that sometimes one does not think clearly when under pressure. However, everything points only to one inevitable, inexorable conclusion, that the appellant was determined to drive the vehicle away to prevent its being towed away by a tow truck driver that may have been engaged by Mr Bazzi in order for him to fulfil his obligation under the notice delivered to him by the Council. In addition, the appellant raised both yesterday and today his right to defend his possessory lien in the vehicle, but his right of possession could not be overridden by Mr Bazzi and Mr Corti because they did not have the key to the vehicle or the key to the club lock. It is highly unlikely that Mr Bazzi would have damaged his own vehicle and there is no suggestion that he ever tried to do so.
There is no merit to the suggestion that Mr Corti had previously tried to "steal" the vehicle or otherwise take possession of it or that he misbehaved towards the appellant at the CTTT because such things were never put by the defence to Mr Corti when he gave his evidence. Leaving aside the protestations made by the appellant in his evidence, there is no evidence otherwise of any misconduct by Mr Bazzi and Mr Corti in their numerous interactions with the appellant between June 2012 and May 2014. There was no need for the appellant to drive the vehicle away when he only needed to wait for the tow truck to arrive and to explain his position to the tow truck driver and perhaps retain the tow truck driver himself to tow the vehicle back to the repair shop.
Self-defence is governed in this State by s 418 of the Crimes Act 1900. Section 418(2) is in the following terms:
"A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a) to defend himself or herself or another person, or
[…]
(c) to protect property from unlawful taking, destruction,
damage or interference, or
[…]
and the conduct is a reasonable response in the circumstances as he or she perceives them."
I am not persuaded that the defendant honestly believed it was necessary to do what he did to defend himself.
The appellant may have believed it was necessary to drive the vehicle away to protect the vehicle from being taken by a tow truck driver, but the conduct in which the appellant engaged was not in any way a reasonable response in the circumstances that he perceived at the time. The circumstances are a necessity to defend a property which could only arise when a tow truck driver arrived. The appellant wished to pre-empt that occurring at all. Furthermore, the law values the integrity of a person over the integrity of property. It is a much more serious crime to injure a person than it is to damage property. The moral culpability for injuring a person is much greater than the moral culpability for damaging property. The learned magistrate rightly concluded that the prosecution had negatived any defence of self-defence.
During this appeal a number of questions of law arose. The appellant protested that he had not intended to cause harm to either of the victims. That raised for consideration what the mental element or mens rea might be in a offence contrary to s 53 of the Crimes Act 1900. It appeared to me, uninstructed by authority, that the appropriate mens rea was the intention to drive. The prohibited conduct is wanton driving, furious driving, racing, some other misconduct or wilful neglect which causes bodily harm to another. It is the manner of the driving which is a necessary element of the offence, but the various mental states involved in each of the sub-categories is quite different and therefore it appeared to me that the only mental element was the intention to drive. However, guidance on this issue can be gleaned from the more serious offences of dangerous driving causing death or grievous bodily harm, which are provided for in s 52A of the Crimes Act 1900. The offence of dangerous driving replaced the offence of culpable driving which had previously been provided by s 52A.
The learning on those offences is that the offence is one of strict liability and the prosecution is not required to prove any mens rea. However the defendant can raise an honest and reasonable mistake as to fact, which once raised by the evidence, the prosecution must negative. The authorities for those propositions are Giorgianni v R (1985) 156 CLR 473, and Jiminez v R (1992) 173 CLR 572.
There is the presumption that the driving of an accused person is a voluntary and conscious act. It is not necessary for a judge to direct a jury on that element of the offence unless there is some question of sleep or the influence of alcohol or drugs arising. See, for example, Edwards v Macrae (1991) 14 MVR 193 and R v Dunne (NSWCCA, 1 March 1993, unreported). I approach therefore the proper interpretation of s 53 as being a crime of strict liability.
The verbiage of s 53 which I quoted at the commencement of these reasons is that of the late 19th century. The offence was clearly directed to horse-drawn transport. I would have thought that the words "in charge of any carriage or other vehicle", the word "vehicle" should be construed ejusdem generis with the word "carriage" so that the it would be apt to describe a gig, trap or dray or other horse-pulled contraption. But it is clear that the word "vehicle" is appropriate to describe a self-propelled, that is, automobile, vehicle.
The court attendance notices charging the appellant refer to "wanton/furious driving", being two of the categories of conduct proscribed by s 53. The learned magistrate found both wanton and furious driving. The appellant submits that his driving was not furious, relying upon the dictionary definitions of that word. However, there is some learning on the word "furious" in a similar provision. That learning is Chatterton v Parker (1914) 3LT 381, a decision of the King's Bench Division of the High Court of England. Relevantly, Darling J said this:
"In this case the appellant was convicted for that he did drive a trap furiously on a certain highway so as to endanger the lives and limbs of passengers, and it is now contended on his behalf that the conviction was wrong. It appears from the case stated that the appellant was in a cart, that he was apparently asleep, and that the horse was proceeding along the highway at a furious rate. There is no doubt that the appellant had been driving before he went to sleep, but it is now said that because he was asleep that he was not driving, that in fact no one was driving, and that the horse was left to go on furiously according to its own devices and choice. In my opinion the appellant was driving. There is no contention that he had been seized with illness, and was therefore unable to exercise his will. Again, the trap was proceeding at a furious pace. As I have said the appellant was really driving and therefore he was driving at a furious pace. There is nothing in the statute which makes it necessary that, in order to constitute furious driving, the driver should be actually urging on the horses with a whip or using other means to increase his pace. A horse may be driven furiously if the driver neglects to restrain it and keep it under proper control.
The other point raised on behalf of the appellant is that which refers to the endangering of the life or limb of any passenger. In my view the conviction in the present case might be upheld on the ground that the appellant was himself a passenger, that there was evidence that he endangered his own life and limb."
The other members of the Court, Avory and Rowlatt JJ agreed with the outcome but not with the reasoning that the appellant in that case was a passenger in the dray of which he was a driver. They joined in the judgment of Darling J because they were of the view that the police constable who detected the furious driving was himself put at risk. According to Avory J the person driving must endanger some other person. Rowlatt J was of the same view. Avory J said this:
"The section means that a person is guilty of an offence if he drives furiously in such a manner as to endanger passengers who may reasonably be expected to be on the highway."
In other words, furious driving is driving at a pace or speed which causes danger to the life or person of other users of the road.
Driving at any pace other than a walking pace with persons sitting on the bonnet of a car is inherently dangerous, offers those persons the prospect of hurt or injury and therefore can properly be described as furious driving. In any event it appears to me that the conduct of the appellant was wanton. I am aware of a decision of one of my predecessors, Cooper DCJ in R v Bolton (unreported 14 May 1981) in which his Honour held that the word "wanton" means unrestrained disregard of the consequences of the accused's action. The original meaning of "wanton" as an adjective, meant undisciplined, ungoverned, unmanageable or rebellious. When used in connection with cruelty or violence, it meant unprovoked or reckless or gratuitous violence. When the adverb "wantonly" is used in respect to "action" it means without regard for right or consequences, recklessly, gratuitously or wilfully. In my view, wanton is apt to describe reckless conduct. Anyone driving a vehicle with persons sitting on the bonnet of a vehicle at any speed, other than a walking pace is, in my view, acting with reckless disregard to the health and safety of those sitting on the vehicle. In my view, the appellant's actions were clearly wanton. Indeed, the admission that his driving was dangerous really answers that question.
The defence of necessity is not open in a case of this nature. According to Stephen, in his Digest of the Criminal Law:
"An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed would have inflicted him or upon others, whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided."
The extent of that principle was discussed in R v Loughnan (1981) VR 443, where it was established that there were three elements:
1. the act must have been done only to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon those whom he was bound to protect;
2. the accused must honestly believe on reasonable grounds that he is in imminent peril; and
3. the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided
This defence has been applied in a case of speeding, where the driver was taking his gravely ill son to hospital R v White (1987) 9 NSWLR 427. It has also been held, I am aware in lower courts, that it applies to somebody who breaches, for example, drink/driving laws in order to take a woman in labour in imminent birth of delivery of her child to hospital by a motor vehicle, when there is insufficient time for an ambulance to be called.
Here, what was "the irreparable evil", which the accused sought to avoid? I have already found on the evidence, that there was no reasonable belief that the appellant himself or his ex‑wife or his children, were in danger of suffering death or grievous bodily harm. The only evil which it appears to me the appellant sought to avoid, was the evil of having the car towed away. To suggest that inflicting actual bodily harm on two persons was a lesser evil than having a car towed away is risible, or to use more plain English, laughable.
The final defence upon which the appellant relied was duress.
MATTER INTERPOSED
APPELLANT: Your Honour, I'd like to make an application if I can?
HIS HONOUR: I'm in the middle of giving judgment, you can't.
APPELLANT: I'd like to make an application to withdraw, your Honour, upon reflection of the Local Court--
HIS HONOUR: You mean what, the appeal?
APPELLANT: Yes.
HIS HONOUR: No, you can only withdraw the appeal with my leave. Why should I grant you leave when I am giving my reasons?
APPELLANT: Your Honour, I just reflected a bit in the break that we had, I was just having a bit of a reflection and I feel like the Local Court judgment is reasonable and I'm willing to accept it.
HIS HONOUR: Sorry?
APPELLANT: I feel like the Local Court judgment, upon reflection, is reasonable and I'm just willing to accept it, your Honour.
HIS HONOUR: It's only an appeal against conviction at this stage, I haven't granted you leave to appeal against the sentence so I can't interfere with the sentence because there's no appeal before me against the sentence.
APPELLANT: That's fine, your Honour, I'll just accept it as it is.
HIS HONOUR: What do you say, Ms Brown? Section 67--
BROWN: It does at any stage--
HIS HONOUR: Yes, but with leave.
BROWN: Yes, with leave--
HIS HONOUR: I am not to bound to grant it, either.
BROWN: No. Your Honour, probably my only concern is that if there was to be another appeal lodged--
HIS HONOUR: What appeal could there be?
BROWN: There couldn't be but just if Mr Aslan did in the future decide that he wished to repursue it. I'm also wondering under those circumstances whether there's a provision for the Crown to seek costs. It's not something I've done before but I think it's really a matter for the Court whether leave is granted at this late stage, bearing in mind that your Honour had almost finished the judgment.
HIS HONOUR: Yes. I mean when one takes care to deliver judgment, Mr Aslan, if these are civil proceedings it wouldn't be granted leave at all, you can't seek leave after commencement of judgment.
BROWN: I think, your Honour, upon reflection my position would be that leave not be granted at this late stage.
HIS HONOUR: Part 53 rule 10.
BROWN: It says in the commentary that a court is not bound to give leave to withdraw.
HIS HONOUR: Yes, I know. Yes, under Part 53, r 10(2)(gi), an application for leave to withdraw an appeal under s 67 of the Crimes Act (Local Courts Appeal and Review) Act 2001 is to be made by a notice of motion. I can dispense with that. Since you don't wish to proceed further. Just for my benefit I am going to outline briefly what I was going to do, all right, Mr Aslan? Do you understand?
APPELLANT: So it's withdrawn, your Honour?
HIS HONOUR: Sorry?
APPELLANT: So it's granted? Is it withdrawn?
HIS HONOUR: No. Since you don't wish to persist with it, I can abbreviate the reasons I'm going to give for the rest of the judgment.
APPELLANT: And will they be recorded, your Honour?
HIS HONOUR: Yes. Why, you don't want them recorded, is that why you're making the application?
APPELLANT: Yes, yes, your Honour.
HIS HONOUR: Leave to withdraw the appeal is refused, no proper ground has been shown for why it ought be granted. Have a seat, Mr Aslan.
The remaining substantive defence raised by the appellant is one of duress. The appellant referred me to a number of authorities. They included R v Willer (1986) 83 Cr App R 225; R v Conway [1989] 1 QB 290; DPP v Bell [1992] RTR 335; and R v Cairns [1992] 2 Cr App R 137. In R v Conway, Woolf LJ delivered the judgment of the court which comprised him and McCullough and Auld JJ. At 298D his Lordship quoted from the decision of the Lord Chief Justice Lane in R v Graham [1982] 1 WLR 394. What the Chief Justice said there has been approved by the House of Lords in R v Howe [1987] AC 417. His Lordship said this:
"As a matter of public policy, it seems to us essential to limit the defence of duress by means of an objective criterion formulated in the terms of reasonableness. Consistency of approach in defences to criminal liability is obviously desirable. Provocation and duress are analogous. In provocation the words or actions of one person break the self-control of another. In duress the words or actions of one person break the will of another. The law requires a defendant to have the self-control reasonably to be expected of the ordinary citizen in his situation. It should likewise require him to have the steadfastness reasonably to be expected of the ordinary citizen in his *459 situation. So too with self-defence, in which the law permits the use of no more force than is reasonable in the circumstances. And, in general, if a mistake is to excuse what would otherwise be criminal, the mistake must be a reasonable one.
It follows that we accept Mr. Sherrard's submission that the direction in this case was too favourable to the appellant. The Crown having conceded that the issue of duress was open to the appellant and was raised on the evidence, the correct approach on the facts of this case would have been as follows. (1) Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed King had said or done, he had good cause to fear that if he did not so act King would kill him or (if this is to be added) cause him serious physical injury? (2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed King said or did by taking part in the killing?"
There is therefore to be seen that there is to be consistency with defences of duress, provocation and self-defence. Each offence requires not only a subjective belief but a reasonable response in the circumstances viewed objectively.
In the current case I am not persuaded, as earlier said, that the appellant honestly believed that he was at risk of death or serious bodily injury, nor did he honestly believe that his wife and children were subject to a threat of death or serious bodily injury. I also cannot accept that the appellant feared that the vehicle would be removed from Shaw Avenue by the action of Messrs Bazzi and Corti. Such a fear could only arise when a tow truck driver arrived and appeared to take directions from Mr Bazzi. That had not yet occurred. There is no reason to believe that the appellant had a genuine fear that any removal of the car was imminent. In any event, fear for the removal of the car does not in any way justify a reaction which caused actual bodily harm to Messrs Bazzi and Corti. The action was quite disproportionate to any fear that the appellant may genuinely have had about the intention of Mr Bazzi to cause the vehicle to be removed from Shaw Avenue. Furthermore duress, by its definition, is a fear produced by threats of death or grievous bodily harm if a certain act is not done, or overbears the actor's wish not to perform the act and its effect at the time of the act in constraining him to perform it. That was laid down in DPP for North Ireland v Lynch [1975] AC 653 at 686. The authorities make it clear that the threat must be death or grievous bodily harm, or of imprisonment or of violence generally. I am unaware of any case deciding that a threat to property amounts to duress such as to justify committing an act which causes actual bodily harm. The offence of duress in those circumstances is not made out.
A submission has been put by the appellant that there was no causation between the injuries sustained by Mr Corti and his coming off the bonnet of the red car, whether one calls it his falling off or jumping off the vehicle. It is clear that when Mr Corti got off the front of the bonnet, he had the momentum of the car behind him. As I have already pointed out, an inference could be drawn that it was a slight temporary braking by the appellant which caused him to come off the bonnet of the car. Leaving that aside, it is clear that he was trying to escape a position of peril and, acting with the momentum of the car, took a number of strides seeking to remain upright, his no doubt being concerned that if he fell onto the carriageway he might be run over. In the process of making those strides Mr Corti may have suffered the injuries which he did, an injury to his left foot which is shown in photographs of his body, which appear to be part of exhibit 5 before the Local Court and are images numbered 6 to 10. The earlier five images are the images of the injuries sustained by Mr Bazzi. The submission put by the appellant is that these injuries were caused not by Mr Corti coming off the bonnet of the vehicle, but rather by his pursuing the appellant as he drove away in the red car. That submission is unsupportable. It is clear that the strides that Mr Corti took after coming off the car were an attempt to keep his balance and to "burn off" momentum of his body caused by the impetus given to him by the red car. It was suggested by the appellant that Mr Corti pursued the red car after he was thrown off it and after Mr Bazzi came off it, and that the appellant had come to a stop some small distance away from Mr Bazzi and that the appellant decamped in the vehicle because of a continuing fear caused by Mr Corti's continued pursuit.
Such is not supported by the video film which clearly shows Mr Corti reacting to coming off the bonnet of the car and then heading towards the red car but when he sees Mr Bazzi on the roadway he goes no further than Mr Bazzi and stops to give him assistance. The suggestion that it was necessary for the appellant to decamp in the vehicle because of a pursuit by Mr Corti is merely fanciful. I accept that Mr Corti's injuries were caused by his left foot coming into contact with the roadway either initially when he came off the vehicle or in subsequent stepping out when he was trying to maintain his upright position.
The final thing I should say is that there was much evidence concerning skid marks. That evidence went nowhere. It was an unnecessary part of the Crown case and like every other issue in the case was pursued by the defence but unnecessarily so. There is no averment by any police officer that the skid marks that they marked out were fresh, that they had only been laid down in the last 10 to 16 minutes or so, that the smell of burnt rubber was still to be made or appreciated or perceived. There is just a reference to skid marks on the roadway and no attempt was made by the Crown to link those skid marks to the red car at all. The issue, as I said, was an unnecessary one and it was not really part of the Crown case to adduce those skid marks other than to raise a further area of concern for the defence.
In the circumstances, I am persuaded that the convictions recorded were correctly recorded. For those reason the appeal is dismissed. Any further application?
APPELLANT: Yes, your Honour, I would like to make an application for severity, leave to seek - I thought I'd actually made it already.
HIS HONOUR: No, you haven't.
APPELLANT: Well, I'd like to seek leave so I can get that fixed up.
HIS HONOUR: I'm giving you a Parker warning. I think the penalty was too low. You are going to get a more severe penalty if you persist with an application for leave to appeal against the severity of the sentence. Furthermore, I suspect that you're concerned about the disqualification period, am I right in that regard?
APPELLANT: Yes, your Honour.
HIS HONOUR: Well I think it's automatic, isn't it?
BROWN: Yes, your Honour, it's the minimum. The order made was actually three years.
APPELLANT: Plus the actual money, your Honour, it's $2,000 per fine and I've got no money. I haven't been paid in the last six weeks and I'm in financial dire straits and I think the fine was quite--
HIS HONOUR: Well you can make an application to the Registrar of the Local Court about that but in my view some form of custodial sentence was warranted and you can't get around the disqualification period. As Ms Brown has told me, the disqualification is automatic. The automatic disqualification is in fact three years and the magistrate imposed the minimum applicable which is one year, you can't do anything about that at all.
APPELLANT: What I wanted to apply for, your Honour, is a s 10(1)(b), that's what I wanted to--
BROWN: Your Honour, technically the severity appeal is out of time and your Honour doesn't have to grant leave.
HIS HONOUR: Well technically I have to grant leave, yes.
BROWN: No, well, your Honour doesn't have to grant leave and considering your Honour has indicated because Mr Aslan is self-represented and your Honour's indicated that you're likely to impose a heavier sentence it may be your Honour refuses leave.
HIS HONOUR: That's right, leave is necessary because in the notice of appeal it doesn't say this is an appeal against severity of the sentence. The appellant has indicated that he wishes now to pursue an appeal against severity of the sentence, although the notice of appeal appeals only against the conviction. In the circumstances the appellant seeks leave to agitate an appeal against severity of the sentence. I have indicated to the appellant that if he persists with that application I must give him a Parker warning. In my view some form of custodial sentence ought to have been considered by the Local Court. That was not done. The appellant was fined and disqualified from driving for the minimum period applicable. Nothing that I can do other than give the appellant the benefit of s 10 would obviate the conviction. This, considering what I have said about giving the appellant a Parker warning, would be an otiose exercise. Leave to appeal against the severity of sentence is accordingly refused.
BROWN: And, your Honour, that's an appeal requiring leave under s 12(3).
HIS HONOUR: Yes, we all know that.
BROWN: Yes, just for the purpose of the record.
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Decision last updated: 28 August 2015