In order to deal with the points raised in argument it is necessary to state the facts in a little more detail. During the preceding evening the two men had argued and the appellant had asked the complainant to leave the premises in the near future. On the morning in question at about 7.40 a.m. the argument was renewed in the kitchen. They went to the decking near the front steps. The complainant was agitated and repeatedly adopted a physically threatening pose of standing a few inches away from the appellant, puffing out his chest "in baboon fashion", looking down at the appellant and trying to push him back with his chest. The complainant is about six foot two inches high and a stone and a half heavier than the appellant who is about six feet tall. The appellant pushed him away a few times, but the complainant lunged and caught the appellant a grazing blow to his left ear. He says that the complainant threw two slight blows, one of which glanced off his left ear and the other of which landed in the middle of his chest.

Thereupon, according to the appellant "in the next five or six seconds, I probably swung five or six punches at him most of which landed in his face". Elsewhere he said that he probably struck the complainant four direct punches to the face, one glancing blow to the head, and that his last punch was controlled so that it stopped about two inches from the complainant's face, being delivered as a warning gesture. When asked why he stopped he said "it became evident to me that he was becoming defensive" and "no longer a threat to me".

The appellant said that he was not intimidated by the complainant, but he was "certainly concerned" about him, and that "it would be fairly reasonable to assume that he would be capable of harming me". When asked whether he thought there was anything else he could do at the time to defend himself he responded "nothing, words have had no effect, he was just totally irrational". In another passage of evidence he said that he delivered the four or five blows to the other man's face in a space of less than five seconds.

The Magistrate's findings including the following:-

"The defendant received a light glancing blow which came in contact with the left side of his head and he retaliated with what could be described as a flurry of about six blows to the head of the complainant. The evidence indicates that they were rather forceful blows which caused the injuries described by the complainant and indicated in the photographs. I am satisfied the complainant did not offer any resistance whatsoever after the first punch was thrown."

By an amended ground of appeal it was submitted that the finding in the last sentence was unsupported by any evidence and was unreasonable. The argument on this ground was based upon the mistaken view that the second of the two blows emanating from the complainant came at some time after the first blow delivered by the appellant. There is nothing to justify that view, and a reasonable reading of the whole of the evidence suggests that these two blows both preceded the appellant's response.

The Magistrate's primary findings of fact are in accordance with the evidence.

Counsel for the appellant went on to submit that the finding that the retaliation went beyond the bounds of being reasonable was not open, because the Magistrate did not say where the lawfulness of the response finished and the unlawfulness began. Counsel's premise seems to be that at least the first blow must be taken to have been a blow in lawful self-defence, and that the prosecution cannot show which blow or blows caused the respective items of damage to his face, and that as the prosecution cannot do this it cannot identify which blow, if any, was unlawful.

In some cases it is possible to break up a fight into particular blows, and different consequences may follow according to the consequences shown to follow from different parts of an ongoing encounter (see for example R. v. Prow 1990 1 Qd. R. 64; and Lergesner v. Carroll 1991 1 Qd. R. 206). In the present case however the response of the appellant cannot realistically be subdivided into five assaults, and it is difficult to view the appellant's response as anything other than a single incident. The description of the event comes from the appellant himself, who presented it as a single reaction. He was not asked to designate which blow caused which damage, and plainly he could not be expected to do so.

Courts have often been confronted with the problem whether particular acts of violence may fairly be regarded as one event, or whether it is necessary that each be regarded as a separate act for purposes of criminal liability.

"The question arises - what is an offence? If A attacks B and, in doing so, stabs B five times with a knife, has A committed one offence or five? If A in the dwelling house of B steals ten different chattels, some perhaps from one room and some from others, has he committed one offence or several? In many different situations comparable questions could be asked. In my view, such questions when they arise are best answered by applying common sense and by deciding what is fair in the circumstances. No precise formula can usefully be laid down but I consider that clear and helpful guidance was given by Lord Widgery C.J. in a case where it was being considered whether an information was bad for duplicity: see Jemmison v. Priddle [1972] 1 Q.B. 489, 495. I agree respectfully with Lord Widgery C.J. that it will often be legitimate to bring a single charge in respect of what might be called one activity even though that activity may involve more than one act. It must, of course, depend upon the circumstances." (per Lord Morris in R. V. Merriman (1973) A.C. 584, 593).

Similarly, in R. v. Morrow and Flynn (C.C.A. unreported 30th August, 1990) Connolly J. observed:-

"It is obvious that a knifing attack by one man who delivers a number of blows may properly be charged as a series of woundings, but one must ask oneself whether this would be an application of common sense in terms of Lord Morris' speech."

"For my part I see no objection to charging the incident as one offence, provided always that it is clear what the offender is charged with. Similarly, a series of penetrations by the same offender in the course of one sexual attack need not, in my judgment, be the subject of separate counts so long as they are not seen to be separate and distinct in time or circumstance. The first penetration may be interrupted by the victim's struggles or by a momentary apprehension of detection. It would of course be open in strict point of law to charge each penetration as a separate offence but scarcely consistent with the robust approach suggested by Lord Morris. In such a case I see no objection to charging one count of rape".

A similar approach is recognised in R. v. Baynes 1989 2 Qd.R. 431. These observations are directed to a different aspect of the problem that arises here, but they show a willingness by the Courts to take a broad commonsense view of an event. They do not support the needless subdivision of something that can reasonably be viewed as a single transaction. In the present matter it would be unrealistic to regard the evidence of the appellant as revealing anything other than a single response in which he rained five blows upon the face of the other man, without any apparent response from that person. In the end this is a question of fact. In a case where there are separate or distinct incidents then quite obviously the criminal responsibility of each such incident and its consequences may need to be analysed. But in a case such as the present it is difficult to see how any other response is possible than to look at the appellant's retaliation as a whole. We therefore do not consider that the inability of the prosecution to subdivide the response into separate blows and identify which blow caused which bodily injury causes the prosecution to fail.

However, if one looks at the response as a single response to a situation where some self-defence was found to be justified, a fundamental question arises as to the reasonableness of the Magistrate's decision adverse to the appellant. It is the first limb of s.271 that is relevant in this case:-

"Self-defence against unprovoked assault. When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely to cause death or grievous bodily harm."

The defence was fairly raised in the present matter and the onus was on the prosecution to exclude its application beyond reasonable doubt. Having regard to the evidence accepted by the Magistrate, what were the limits of what could be regarded as "reasonably necessary to make effectual defence against the (complainant's) assault"? Judges commonly counsel juries against conclusions reached in the calm atmosphere of a court room which is very different from the stressful circumstances in which the accused person reacted. That such an approach is necessary is well established (Zecevic v. D.P.P. [1987] HCA 26; 1987 162 C.L.R. 645, 650, 662-663; R. v. Johnson 1964 Qd.R. 1 13-14; R. v. Palmer [1970] UKPC 2; 1971 A.C. 814, 832

"If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken." (Palmer p.831)

The determination of the question whether the degree of retaliation was excessive is one in which the primary tribunal applies what it perceives to be the community standard with the advantage of having seen the protagonists, and involves matters of circumstance and degree. Perusal of the photographs in the present matter reveal significant damage to the complainant's face and supports the remarks of the Magistrate that the response was excessive to the occasion. Although the question falls to be considered by reference to the stressful circumstances in which the appellant reacted, the Magistrate's finding that excessive force was used was supported by the evidence and should not be disturbed.

_____________________________________

_____________________________________

_____________________________________

_____________________________________