Bonde v Bluett [2019] TASSC 14

Robinson v Chatters [2010] TASSC 66; Walsh v The Queen [1993] TASSC 91, applied.

Judgment Number: [2019] TASSC 14

ACTING SERGEANT MICHAEL BONDE v DANIEL JAMES BLUETT

1. The respondent was charged on complaint with two counts of common assault. The charges arose out of events which occurred in the Launceston CBD in the early hours of 24 February 2018. The prosecution allegation was that the respondent had assaulted two women within a short time of each other, by punching each to the head. The complaint was heard by Magistrate K Stanton over three separate days in August 2018. On 14 August 2018, at the conclusion of the hearing, his Honour gave an immediate decision with ex tempore reasons. He found the first count proved but was not satisfied that guilt had been proved in respect of the other count. That count was dismissed.
2. The applicant now seeks a review of the decision to dismiss the second count.
3. A summary of the prosecution case is as follows. The relevant events occurred at about 3.40am at a taxi rank in the CBD. A large number of people were queued at the rank for the purpose of catching a taxi. The respondent had attended a number of social venues that night and had consumed some alcohol. He was not actually in the queue but was standing near it. For reasons which were disputed in the hearing, he became involved in an argument with a female, who is the complainant in respect of count 1. I will refer to her as the first complainant. She had also been enjoying a social night out and had consumed some alcohol. During the course of the argument, the respondent struck her to the face causing her to fall to the ground unconscious. In his testimony at the hearing, the respondent claimed that he had attempted to walk away from the first complainant during the course of the argument but had felt a hand grab him from behind. He had swung around and swung his right arm backwards as a response to this. He felt his hand hit something and then saw the first complainant fall to the ground. The learned magistrate considered this to be a claim that the respondent had acted in self-defence. His Honour correctly directed himself as to the test applicable to the application of s 46 of the Criminal Code as set out by Crawford J (as he then was) in Walsh v The Queen [1993] TASSC 91. He noted that there were a number of witnesses who testified that the respondent was in fact facing the first complainant at the time that he struck her, and that he had struck her by a punch with a closed fist to the face. His Honour accepted this evidence and was satisfied that the respondent had punched the first complainant to "the face when he was facing her and not in the way that he described in his evidence". On this basis, his Honour concluded that although this finding did not necessarily remove the question of self-defence, any threat which had been offered to the respondent by the first complainant did not justify a pre-emptive strike or the respondent "striking her to the face as he did". He found count 1 proved.
4. The complainant in respect of count 2 (the second complainant), was a female who had also attended social venues that night and had consumed alcohol. She was on her way home and had, in fact, engaged a taxi when she saw the respondent punch the first complainant, and the first complainant fall to the ground. She did not personally know the first complainant, although she knew of her. The second complainant's evidence was that she had immediately gone to check on the first complainant and saw that she was unconscious. She said that her attention was drawn to the respondent and she "was screaming at him". He was standing on the roadway, two or three metres from where the first complainant was lying. The second complainant did not remember striking, or attempting to strike the respondent, but did remember that she had been struck in the face with his fist and had fallen to the ground.
5. Other prosecution witnesses gave varying accounts of the interaction between the respondent and the second complainant. However, in his reasons, the magistrate indicated that although he was not prepared to rely on the evidence of the second complainant, or some other prosecution witnesses, including her friend, he was impressed with the evidence of two other witnesses, a taxi driver, Mr Pinnow, and another male person who was present in the taxi queue, Mr Crawford. These witnesses had testified that the second complainant had approached the respondent and swung her hand at him. Mr Crawford was not sure if the swing connected with the respondent but said that the respondent then took a "blind punch" which did connect with the second complainant and knocked her to the ground. Mr Pinnow said that the second complainant had tried to slap the respondent and thought that her fingertips may have touched his face. The respondent had "dodged the slap and hit her and she hit the ground". He said that at the time that he struck her he was not "necessarily facing her" but that she had come "into his field of vision".
6. The respondent's version in evidence was that after he had struck the first complainant, a number of males and females were abusing and yelling at him. He was walking backwards defensively. He felt a punch to his eye and swung his right hand back in a defensive motion. It was only after he had done this that he realised that the blow that he had felt had been delivered by, and the person that he had hit with the hand that he had swung back, "was a girl".
7. As the learned magistrate noted in his reasons, there were differences between a number of prosecution witnesses about the actions of the second complainant and the direction from which she had approached the respondent. The varying versions included that she had come from behind or from the side. Her own evidence, and the evidence of her friend, was that she was in front of the respondent when he hit her. Mr Crawford said that the respondent was not facing her at the time of her attempted blow and his response, she was in fact behind him. Another witness, Mr Kaback, said that the second complainant had come from the left side. Mr Axton, who was a passenger in Mr Pinnow's taxi, said in evidence-in-chief that the respondent had hit the second complainant "front on", and that it was "straight forward to the face". However, in cross-examination, he said that he was not sure whether she had approached from the front or the side.
8. His Honour found that he was satisfied that the respondent did "intentionally strike" the second complainant. However, after noting the differences in the evidence of witnesses concerning the circumstances surrounding the respondent's blow to the second complainant, the magistrate expressed his conclusion as follows:

"I couldn't exclude that Mr Bluett's punch to Ms McDermott wasn't a - a response to the clear threat of an assault and indeed an actual assault - strike by the complainant Ms McDermott."

1. His Honour then considered some evidence which suggested that the respondent may have struck the second complainant after she had fallen to the ground after the first blow. He found that he was not satisfied "that she was hit more than once by the defendant". He went on to say:

"... I couldn't exclude the possibility that there was only one strike and that strike was in response to Ms McDermott pursuing an assault against him."

1. The above seems to represent the totality of his Honour's conclusions in respect of the question of self-defence in relation to count 2.
2. The applicant seeks review of the decision to dismiss count 2 on the following grounds:

"1 In relation to charge 2 on the complaint, the learned magistrate erred in fact alternatively in law in that applying the whole of the evidence no magistrate acting reasonably could have been satisfied other than of the respondent's guilt.

1. The learned magistrate erred in law by failing to consider, in accordance with the Criminal Code s 46 whether the respondent's use of force as against Chloe McDermott was reasonable in the circumstances.
2. The learned magistrate erred in law by failing to give adequate reasons for finding that the respondent's use of force as against Chloe McDermott was reasonable in the circumstances."
3. The applicant concedes that the learned magistrate correctly stated the test applicable under s 46 of the Criminal Code, in particular, by reciting the passage from Walsh (above). It is further conceded that it was open to the magistrate to find that the respondent had struck the second complainant as an act of self-defence. The gravamen of each ground is that the magistrate, in respect of count 2, did not go any further than this, in particular that his Honour did not engage with the requirement to consider whether the force used by the respondent was, in the circumstances as he believed them to be, objectively reasonable. Ground 1 asserts that such a finding was not open, ground 2 asserts that the magistrate did not consider this question, and ground 3 asserts that he did not provide adequate reasons for determining that he was not satisfied that the force used was not reasonable.
4. Grounds 2 and 3 are closely related. There is no question that the learned magistrate did not expressly refer to the question of the reasonableness of force in his reasons. However, he had correctly stated the test at the commencement of his reasons, and correctly applied that test in respect of count 1. Further, his Honour was obviously alive to the need to assess the reasonableness of force in respect of count 2. During the course of legal argument in respect of the evidence of Mr Crawford, his Honour said:

"... if self-defence is going to be the issue, then the question of force is relevant to that."

However, a matter which was integral to the question of the objective reasonableness of force used in self-defence, was his Honour's determination of the circumstances in which the respondent believed that force was necessary. This is not a matter which was necessarily apparent, nor resolved by his Honour's findings of fact as expressed in his reasons. His Honour had found that the punch by the respondent was in response to a threatened or actual assault upon him by the second complainant. However, a blow delivered in response to an earlier blow is not necessarily delivered in lawful self-defence. It will only be so if it is force which is reasonably necessary in the circumstances as the respondent believed them to be. Of particular importance in this case was the question of whether the respondent was aware of the source of the blow to which he responded, and in particular whether he had looked at the second complainant before he struck her. On the respondent's version, he had not done so. The impression arising from his evidence is that he felt himself under immediate threat from a crowd of people and had lashed out in response to being punched before he had identified the source of that blow. However, the magistrate had earlier indicated that he could not rely on the evidence of the respondent. In arriving at this conclusion, he had specifically referred to the inconsistency between the evidence of the respondent as to where on his face he had felt the blow, and photographs showing injuries which he attributed to that blow. Further, the respondent's version was not consistent with the magistrate's finding that the respondent had intentionally struck the second respondent.

1. The magistrate noted the considerable inconsistency in the versions of various witnesses as to where the second complainant was when she attempted to strike the respondent, which was relevant to whether he had seen her before delivering the blow. It was at least open that the circumstances as the respondent believed them to be could be established as including his knowledge that a female had made an attempt to slap him which had been only faintly successful. If the magistrate was satisfied of that circumstance, there would clearly be a significant issue as to whether it was reasonably open to him to conclude that it was reasonably possible that a punch delivered by the respondent directly to the face of that female with enough force to break her jaw and knock her to the ground, after he had already successfully "dodged" the attempted slap, would be force which it was reasonable to use.
2. I cannot determine from the magistrate's reasons as to whether he has made a finding as to the circumstances as the respondent believed them to be, and the related question of the objective reasonableness of the force used by him. It may well be that his Honour has done so, and this consideration is reflected in his determination that he was not satisfied beyond reasonable doubt that the respondent was not acting in lawful self-defence. However, given the conflicting evidence about this question, and its pivotal nature in respect of the determination of count 2, I am satisfied that ground 3 has been made out. In Robinson v Chatters [2010] TASSC 66, Wood J described the obligation of a magistrate to provide reasons requiring "enough detail to enable an appeal court to effectively discharge its functions and for the parties to understand why they have won or lost". The difficulty I have in this case is that it is not possible to determine from the reasons as to whether the magistrate has given any or any adequate consideration to the question of the reasonableness of the force used by the respondent "in the circumstances as he believes them to be". Without clarification and adequate reasons on that question, it is not possible to resolve the issues raised by grounds 1 and 2.
3. Both counsel agreed that if I reached this conclusion, then the appropriate course was to remit the matter to the learned magistrate with a direction to furnish the Court with further and better reasons. I have authority to take this course pursuant to s 110(2A) of the Justices Act 1959. I agree that this is the course which should be taken. The process contemplated by the said provision is that, upon receipt of the further and better reasons, they would be made known to the parties and the Court would then reconvene for the purpose of further submissions and, if necessary, determination. That process was also the subject of agreement between counsel.
4. Accordingly, pursuant to s 110(2A) of the Justices Act, I remit this matter to the magistrate and direct the magistrate to furnish this Court with further and better reasons for his decision in respect of count 2, taking into account in particular the matters which I have discussed in these reasons. I am required to place a time limit on the direction. Accordingly, I direct that the further and better reasons be provided within 30 days of the communication of these reasons to the magistrate.