Dale v Fox [2012] TASSC 84

Armellin v Ljubic [2009] ACTCA 22; Platt v Nutt (1988) 12 NSWLR 231; Hart v Attorney-General unreported dated 29 May 1959, applied.

Quarmby v Oakley and Harper [2011] TASSC 20; Carter v Walker [2010] VSCA 340, referred to.

Judgment Number: [2012] TASSC 84

1 The plaintiff, Scott Dale, and the defendant, Trevor Fox, were charged with offences arising from efforts made to explode a bomb in and set fire to the Government Analytical and Forensic Laboratory on 8 March 2000. Wayne Howlett, Bernard Hall and another male (a youth), were also charged with offences in relation to this attack on the laboratory.

2 Some of those with an interest in the laboratory attack suspected Trevor Fox of assisting police with the investigation of the attack and the prosecution of perpetrators. These suspicions resulted in Mr Dale and others going to Mr Fox's home at Dromedary on 3 December 2001, where a confrontation occurred. In the course of the confrontation pellets fired from a shotgun held by Mr Fox struck Mr Dale in the face, blinding him.

3 Mr Dale claims damages from Mr Fox for his injuries. Mr Dale's cause of action against Mr Fox is in trespass for battery. For the purposes of this decision the hearing was confined to the issue of liability and associated questions of self-defence or contributory negligence.

4 My reasons for decision are based on the evidence of the parties as well as Aaron Butler and Joseph Tonner who were called to give evidence by Mr Fox. In the course of the evidence many other persons have been named who, it seems, could have given evidence about the events that precipitated the confrontation between Mr Dale and Mr Fox and the confrontation itself. None of them were called to give evidence. In reading these reasons, it must be kept in mind that, save for the four witnesses mentioned, the persons named in the reasons have not been heard. Any findings made are solely as between the parties to these proceedings.

5 Joseph Tonner gave evidence that a few days prior to Monday, 3 December 2001, a group of three females and four to five males with an interest in pending prosecutions for offences arising from the laboratory attack, were conversing at the home of his aunt Mandy Tonner in Glenorchy. Those present included Mr Tonner, Mr Dale and Gavin McIntosh. The group discussed killing Mr Fox, stealing from him and burning his home after they had done what they had to do. In the course of the meeting a threat was made to Mr Tonner that, if he did not take part in what was proposed, his arm would be cut off. Later that day, Mr Tonner warned Mr Fox about what had been said and provided him with a sawn-off double barrel shotgun.

6 On Monday, 3 December 2001, there was a similar gathering at the home of Mandy Tonner, who in the evidence was also referred to as Mandy Howlett. I will refer to her as Mandy Tonner. She is the mother of Wayne Howlett who, at the time of the events in question, was in prison. Mr Dale provided the only evidence in relation to this gathering and that which followed it to the point that Mr Dale and others arrived at Mr Fox's property at Dromedary.

7 Those present at the gathering on 3 December 2001 included Mandy Tonner, Debbie Tonner (Mandy Tonner's sister-in-law and the mother of Joseph Tonner), Darren Cooper (Mandy Tonner's partner), Jessie Cooper (Mandy Tonner's daughter), Mary Pybus, Mr McIntosh and Mr Dale. Mandy Tonner was "raving on" about going to Mr Fox's place. Some of those involved in the discussion had been raving on for months about Mr Fox. There was bad blood between Mandy Tonner and Mr Fox. Mandy Tonner said she was sick of Mr Fox sitting up there on his hill like "king shit", while her son was sitting in gaol. Mr Fox was described as a dog for dobbing in Wayne Howlett to police in relation to the laboratory attack. Mr McIntosh suggested that they go to Mr Fox's place "to sort it out once and for all". Thereupon, Mr Dale and Mr McIntosh went to the place of business of Mr Dale's father where Mr Dale borrowed his father's van.

8 Mr Dale and Mr McIntosh returned in the van to Mandy Tonner's home. When they again left her home late that afternoon to go to Mr Fox's residence at Dromedary, or at least shortly after leaving her home, they had with them in the van Benjamin Pearce, Nick Allie and Todd Graham. On the way to Dromedary they picked up Darren Cooper. Mr Dale was driving the van, Mr McIntosh was in the passenger seat, and the others sat on bench seats along each side of the rear of the van. On the way to Dromedary the van stopped at the Derwent Tavern, Bridgewater where Mr Dale noticed Mandy Tonner, Debbie Tonner and Mary Pybus in the tavern carpark near Mandy Tonner's Datsun vehicle.

9 From the Derwent Tavern, Mr Dale drove the van, with the occupants mentioned, to Mr Fox's property at Dromedary. The gate to the property was shut. Mr McIntosh got out of the van to open the gate.

10 To this point in my findings on what occurred on 3 December 2001 prior to the shooting, I have of necessity relied on the evidence of Mr Dale. Generally, I place little reliance on his evidence, save when it is consistent with other evidence or against his interests. He was a belligerent, unhelpful and unco-operative witness. I am satisfied that, in order to avoid answering a number of questions, he falsely denied any recall of the matter in question. He lied to police in March and April 2000 in relation to his involvement in the laboratory attack. It seems that when at the Royal Hobart Hospital after he was shot, he told a number of lies. The hospital records contain entries to the effect that he said that he was the victim of a drive-by shooting and that the gun was fired by an unknown person. He was an unreliable witness and did not hesitate to lie when he considered this to be in his interests.

11 My adverse assessment of Mr Dale's credibility is of little consequence in relation to the issue of whether Mr Fox consciously fired the gun. The only evidence of Mr Dale that clearly indicated that the gun was fired consciously is a statement he made to police in April 2002 that there were two definite shots. He did not press this claim in his oral evidence. In his evidence-in-chief he simply referred to hearing a bang, and when cross-examined he said that there could have been two shots but he was not sure. I accept the evidence of Mr Fox that there was only one shot, and Mr Butler that there was only one explosion. Their evidence in this regard finds some support in the evidence of Constable Denholm to which I will refer. I am also conscious that, had two shots been fired, it would have been obvious to all present that the gun was no longer loaded and no longer to be feared.

12 By chance, an off-duty police officer became aware of the shooting very shortly after it occurred. Police promptly endeavoured to investigate the matter. Sergeant Gerard Kirkham was the initial investigator. He had no difficulty getting statements from Mr Fox and Aaron Butler, who was with Mr Fox at the time of the shooting. Mr Fox was interviewed on 10 December 2001, and Mr Butler was interviewed on 11 and 13 December 2001. After interviewing Mr Fox, Sergeant Kirkham attended his residence and was provided with the sawn-off shotgun involved in the shooting and an iron bar said to have been taken to the scene by Mr McIntosh.

13 On the day following the shooting, Sergeant Kirkham attended the Royal Hobart Hospital and unsuccessfully endeavoured to interview Mr Dale and Mr McIntosh. Mr Dale was extremely abusive and unco-operative, and Mr McIntosh appeared to feign sleep and did not respond. Sergeant Kirkham returned to the Royal Hobart Hospital on several occasions in an endeavour to interview these men, but had no success. In early 2002, Sergeant Kirkham made further efforts to interview both men. He was ultimately able to arrange appointments with Mr Dale, but Mr Dale failed to keep them. Sergeant Kirkham attended on Mr McIntosh at Risdon Prison but Mr McIntosh refused to make a statement or provide any assistance in relation to the matter. On the information Sergeant Kirkham obtained, he was able to recommend that Mr Fox be charged with offences under the Firearms Act 1996 arising from his possession of the sawn-off shotgun. These are the only charges laid referrable to the shooting. Mr Dale eventually made a statement to a police officer, other than Sergeant Kirkham, on 18 April 2002. This statement is in evidence.

14 Mr Fox gave evidence that a few days prior to the shooting, Joseph Tonner had arrived at his home quite upset and told him that he had been at Mandy Tonner's home when a number of people, including Gavin McIntosh, had discussed killing Mr Fox. Mr Fox said that at the time he did not take the threat seriously as he thought that it was drunken talk and nothing more. Mr Tonner also told Mr Fox that a threat had been made to cut a Glenorchy mafia tattoo from Mr Tonner's arm. On that day or the following day, Mr Tonner provided Mr Fox with a sawn-off double barrel shotgun and two cartridges.

15 Prior to Mr Tonner's warning, Mr Fox had been aware of Mandy Tonner's ill-feeling towards him. He had been told she was saying "this and that" about him. When a house guest of hers had visited Mr Fox, she had arrived at Mr Fox's home and ranted and raved at the guest for visiting Mr Fox. On another occasion Wayne Howlett had telephoned Joseph Tonner when he was at Mr Fox's residence and Mr Fox overheard Mr Howlett yelling at Mr Tonner "it's war" or something like that.

16 Prior to the day of the shooting Aaron Butler had been told that Gavin McIntosh and the Glenorchy mafia crew might be coming to Mr Fox's home to try something. Of those present on the day of the shooting, Mr Butler said Nick Allie, Ben Pearce, Todd Graham, Darren Cooper and Scott Dale were members of the Glenorchy mafia. Mr Butler said that Mr Dale was the only one who did not have a GM tattoo on his arm, a tattoo that stood for the Glenorchy mafia.

17 Of those who accompanied Mr Dale to Mr Fox's property on the day of the shooting, Mr Fox said he knew Mr McIntosh to be unpredictable, very dangerous, and not to be taken lightly. He described Mr McIntosh as over six feet tall and thickset. He also said he knew that he had to be wary of Darren Cooper who was a bit of a thug and bit of a standover man who had been involved in the abduction of an old man. He said of Todd Graham that he liked to be a thug if he could get away with it, and was very dangerous when he had people behind him. He said that all he knew of Nick Allie was that he was in the Glenorchy mafia.

18 Mr Dale avoided answering questions about whether Mr McIntosh was dangerous, but inferred that he was when refuting a suggestion that Mr McIntosh had threatened to cut off Joseph Tonner's arm. His response was that if Mr McIntosh had made that threat the arm would have been cut off. He made a comment to a similar effect when refuting a suggestion that he and those who accompanied him to Mr Fox's home went there to hurt Mr Fox. Mr Dale's response was "If we was going to hurt him, he'd be dead".

19 Mr Dale, Mr Fox and Mr Butler gave the only evidence about what occurred after the van driven by Mr Dale arrived at the gate to Mr Fox's property in Tongatabu Road. For the reasons already given I place little reliance on Mr Dale's evidence. As to the evidence of the other two, I conclude that Mr Fox is a disreputable character, and Mr Butler's standing is undermined by the reputation of those he associates with, and the reality that he was not a disinterested observer. He was a participant, helping Mr Fox. He had lived at Mr Fox's property since it was purchased in 1998 and he said of Mr Fox that he, "is like a father". Although I consider that Mr Butler was not an impartial witness, his is the evidence upon which I place most reliance.

20 Insofar as the age of those involved in the confrontation is relevant to my assessment of the evidence, I should say that my understanding is that most of those involved were young men in December 2001. Mr Fox was 36 years of age, and Mr Butler was 21. As to the age of Mr Dale and those who accompanied him onto Mr Fox's property, the only evidence I have is that Mr Dale was 22. My impression is that those described as being members of the Glenorchy mafia and their associates were, in the main, young men, although Darren Cooper cannot be so described. Wayne Howlett was 21, and Joseph Tonner was 19.

21 Consistent with the evidence of Mr Butler and Mr Fox, I find that after the van arrived at the gate, Mr McIntosh and others forced the gate open. Ordinarily the gate was opened and closed by means of an electronic remote control or button which operated a hydraulic ram welded to the gate. In order to force the gate open it was broken from the ram.

22 The evidence of Mr Fox is that when he saw the van at the gate he was in his house about 70 metres from the gate. The shotgun that Joseph Tonner had provided was in the boot of a nearby vehicle. A sock containing two cartridges was tied to the shotgun. Aaron Butler, who lived on Mr Fox's property, was in a bungalow near Mr Fox's house. Mr Fox said that he freaked out when he saw Mr McIntosh at the gate. He hurried to get the shotgun and, as he went, he called to Mr Butler for assistance. Having got the shotgun Mr Fox loaded it and told Mr Butler to get a cross-bow that was in the back of another vehicle, which Mr Butler did. Mr Fox saw and heard the gate broken open. As the van drove up the driveway to Mr Fox's house, Mr Fox and Mr Butler were behind a white Mazda truck parked between the bungalow and the house. Mr Fox was armed with the shotgun and Mr Butler, who was beside him, had the cross-bow. The van stopped about five metres from the Mazda truck.

23 Mr Fox observed the van drive up the driveway of his property but did not actually see it stop. He said that Mr McIntosh and Mr Dale got out of the van and walked forward. Mr McIntosh was holding a steel bar about one inch in diameter and two to three feet in length. It was solid and looked like it had been cut from a stub axle. As soon as Mr Fox saw the bar he cocked the shotgun and told Mr McIntosh to "get the fuck off my property". He pointed the gun at Mr McIntosh and Mr Dale. They moved back to the van. Mr Dale got into the driver's seat and Mr McIntosh got into the passenger seat but was "still half out ... he had one or two feet out". Mr Fox moved towards Mr McIntosh. He explained this movement on the basis that, "I knew if I showed any fear I was stuffed". Mr Fox said words to the effect of, "Just fuck off, get off my property" two or three times. His focus was on Mr McIntosh as he was the aggressor. Mr Fox was standing within two to three feet of Mr McIntosh. Mr Fox saw Darren Cooper's head between the two front seats of the van. Mr Cooper appeared to speak to Mr Dale and Mr McIntosh. Following this the rear doors of the van opened and Todd Graham, Nick Allie and Mr Cooper got out. Mr Dale and Mr McIntosh also started to get out of the van. Mr Fox lifted the gun and aimed it at Mr McIntosh and Mr Dale, and again told them to "fuck off". At this time he might have been a little closer than two feet from the passenger door. His finger was on the trigger of the gun. The side of the barrel of the gun came into contact with the passenger side of the door window-frame and the gun fired. Mr Fox said that he was not at that time intending to fire the gun, although he was going to do so if necessary. The barrel of the gun or the shot shattered the passenger side door window. After the gun fired, Mr Fox could see that Mr McIntosh and Mr Dale were injured. Mr McIntosh was in the passenger seat, and Mr Dale was out of the van. The men who had been at the rear of the van had run back towards the gate.

24 As mentioned, Mr Butler provided police with a statement on 11 and 13 December 2001. What follows is derived from that statement and his oral evidence. When Mr Butler looked down the drive to the van at the gate he saw two to three people, one of whom he recognised to be Mr McIntosh. They were pulling the gate's hydraulic ram up and down. Mr Butler recognised the van to be Scott Dale's. When the gate was forced open Mr McIntosh and a man Mr Butler later recognised as Ben Pearce did not get into the van, but ran towards the house as the van drove to the house. Of these men Mr McIntosh arrived first. He had run straight towards the house through the bush whilst Mr Pearce had followed the path of the driveway. By the time Mr Pearce arrived at the house Mr McIntosh was sitting in the van, having been coerced in by Mr Fox.

25 Mr Butler said that when Mr McIntosh arrived at the house he went towards to the back door. At this time Mr Fox and Mr Butler moved from where they were near the Mazda truck, and Mr Fox yelled at Mr McIntosh to, "Get back in the fucking car", or something similar. Mr Fox was motioning to Mr McIntosh with the gun and waving it as he yelled at him. Mr McIntosh moved back to the van and got "sort of half in" the front passenger seat. The van door remained open and Mr McIntosh's feet were out of the door. Mr Fox was within two feet of the door. As Mr Fox was yelling at Mr McIntosh and Mr Dale to get off his property, the rear door of the van opened and about three or four men got out. Mr Butler recognised Nick Allie, Todd Graham and Darren Cooper. When these men got out they were "sort of ... holding ... at bay just waiting to see what was going to go on". Mr Fox was yelling at all of them, but more at Mr McIntosh and Mr Dale, to get off his property. Mr Fox was pointing the gun in the direction of Mr McIntosh and Mr Dale and motioning with it, waving it, as he yelled at them. The gun came into contact with the passenger side door and discharged. The passenger side window was shattered.

26 A statement of Constable Stephen Denholm, an officer in the Forensic Division, with ballistics expertise, was put into evidence. On the night of the shooting he attended the Royal Hobart Hospital and went to where Mr Dale and Mr McIntosh were being treated. He viewed x-rays of their injuries. In accordance with his evidence I find that the injury to Mr McIntosh consisted of a tangential wound measuring approximately 100mm long and 70mm wide across the crown of his head. The scalp surrounding the wound contained approximately 50 pellets. His injuries were consistent with having been caused by a partial charge of shot striking the front top of his head creating an elongated wound. The injuries to Mr Dale consisted of approximately 16 pellet wounds to the front of his face. His injuries were consistent with having been caused by a partial charge of shot. In Mr Denholm's opinion it was likely that at the time of discharge the muzzle of the gun had been closer to Mr McIntosh than to Mr Dale, assuming that only one discharge occurred.

27 On the following day Constable Denholm examined the van involved in the shooting, and observed that the passenger and driver's side windows were shattered and there was shot damage to the inside driver's side roof, the lining and top of the driver's door skin. He concluded that at least one charge of shot had been discharged from the passenger side of the van. This shot possibly shattered the passenger side window, but this shattering could have been from other causes. The shot had then exited through the driver's window, shattering it. In his view the most likely scenario was that Mr McIntosh was seated in the passenger seat, with Mr Dale in the driver's seat at the time of a single discharge, although a second discharge could not be discounted.

28 On 19 December 2001, Constable Denholm was provided with the 12 gauge Cashmore sawn-off double barrel shotgun that Sergeant Kirkham had received from Mr Fox. His report on the gun is as follows:

"The sawn off shotgun, ..., is in working order and capable of propelling a charge of shot from both barrels, by means of an explosive, which could inflict a lethal wound upon a human being. The shotgun is fitted with external hammers and two triggers: the front trigger operates the right barrel, the rear trigger operates the left barrel. Trigger pressures of approximately 2200 grams (4.8lbs) and 2500 grams (5.5lbs) are required to operate the triggers respectively; this is normal for this type of weapon. Standard safety tests revealed the shotgun is not prone to accidental discharge when handled in a normal manner, when subjected to moderate blows, when dropped or by lateral or forward manipulation of the trigger. However the internal safety mechanism fitted to the left hand hammer is inefficient and may discharge when the hammer (in the rest position) is struck with jarring blows from the rear, without applying pressure to the front of the rear trigger. Portion of the barrels have been removed with approximately 25.7cm remaining. Portion of the butt-stock has also been removed. The shotgun now has an overall length of 46cm. ..."

29 When Mr Butler first saw Mr McIntosh at the house, he noticed that he had in his hand a metal bar or pipe like a really thick water pipe with a hole in the centre, although he was not sure about there being a hole in it. It was about one foot long. Mr Butler said that at least two of the men at the rear of the van had similar lengths of pipe. He was pretty sure that Ben Pearce had one, as well as one of the men who got out of the back of the van. Each pipe looked pretty much the same and appeared to have been cut from the same pipe or bar. After the shooting Mr Butler picked up one of these pipes from near where the van had been parked. The pipe appeared to have been roughly cut with an angle grinder. Mr Butler handed that pipe to Sergeant Kirkham. As mentioned, Mr Fox said Mr McIntosh had a steel bar about two to three feet long. Mr Fox did not notice that any of the other intruders had a bar. Sergeant Kirkham said that he was handed a bar by Mr Fox. He was uncertain about its length and said it was something similar to one and a half to two feet long. Mr Dale said that none of the intruders had a bar or the like. I find that three of the intruders were armed with a short length of pipe or bar, and that Mr McIntosh was one who was so armed.

30 Mr Butler said that after the gun was fired, the men who had been at the back of the van ran, Mr McIntosh remained seated in the passenger seat of the van, and Mr Dale staggered from the van holding his face. Mr Butler could see that they were both injured. He called to the fleeing men to come back. Nick Allie did so. He drove the van, together with his injured associates, from the property.

31 A few minutes after the departure of the van, Mr Butler ran to the gate and secured it with a lock and chain. A little later, Darren Cooper drove to the gate in a Datsun vehicle that Mr Butler recognised as that of Mr Cooper. Mr Butler went to the gate and spoke to Mr Cooper. One enquiry made by Mr Cooper was as to where Mandy was. During the course of that which had occurred, Mr Butler had seen two women with peroxide blonde hair about 50 metres from the house. In response to Mr Cooper's query, Mr Butler pointed to where he had seen the two women.

32 As to Mandy Tonner being in the vicinity at the time of the shooting, Mr Fox said that when he saw Mr Dale's van at the gate he also saw a vehicle that he recognised as belonging to Mandy Tonner. He gave evidence of seeing this vehicle throughout the incident, but his evidence in this regard was far from clear. He said he saw it in the driveway to his home and as I understand it, he also saw it travelling up and down Tongatabu Road. He said that at about the time of the shooting he heard voices from the area behind the bungalow, one of which voices he later identified as being Mandy Tonner's. He also said he saw her at one point but could not recall when. He said she telephoned him on the day of the shooting, but after it, and was drunk, swearing and abusive.

33 Both counsel submitted that the applicable law is as detailed in my decision in Quarmby v Oakley and Harper [2011] TASSC 20, pars[108] and [109], which are as follows:

"108 In my approach to the onus and standard of proof to be applied referable to the parties' respective claims, I have kept in mind the Evidence Act 2001, s140, and the following passage from the joint judgment of Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 170 - 171 (citations omitted):

'The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:

"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...".

There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading.'

109 I have rejected Quarmby's second allegation of assault against Harper, and his allegation of assault against Oakley, on the basis that in each instance the force that was applied was lawfully justified. In a criminal trial it is well-established that the prosecution bears the onus of disproving a lawful excuse for the application of force such as self-defence and defence of premises. The situation is otherwise on a civil trial for trespass to the person. On such a trial the plaintiff bears the onus of establishing the application of force and any consequential injury, but the onus on issues which in broad terms may be said to justify the force applied, lies on the defendant. See for example: McClelland v Symons [1951] VicLawRp 21; [1951] VLR 157, Sholl J at 162 and Pearce v Hallett [1969] SASR 423, Bray CJ at 428, the onus of establishing self-defence is on the defendant; Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218, McHugh J at 310 - 311, the onus of proving consent is on the defendant; McHale v Watson [1964] HCA 64; (1964) 111 CLR 384, Windeyer J at 388, and Venning v Chin (1974) 10 SASR 299, Bray CJ at 312, it is for the defendant to establish that the force was applied without intent and without negligence. However, in Platt v Nutt (1988) 12 NSWLR 231, Kirby P at 235 - 240, set out persuasive reasons for holding that on an action for trespass to the person, the plaintiff retained the onus of proving that the conduct that caused the injury was either intentional or negligent. His Honour's views in this regard were expressed to be preferred by the Court of Appeal in Armellin v Ljubic [2009] ACTCA 22, par[27]. Whatever the situation may be in relation to the onus as to issues of intent and negligence, the law remains clear that as to the issue of self-defence, and by extrapolation, the issue of defence of premises, the onus is on the defendant. See Howard v Wing [2000] TASSC 147, Crawford J (as he then was) par[38], Miller v Sotiropoulos [1997] NSWCA 204, Powell JA, agreed with by Mason P and Meagher JA, Underhill v Sherwell [1997] NSWCA 325, Beazley JA, agreed with by Meagher and Sheller JJA, and Devonport v Wilson [2009] SASC 336, Duggan J at pars[16] - [19]."

34 With reference to par[109] above, I mention that a further authority on the onus with regard to issues that justify the application of force is Carter v Walker [2010] VSCA 340. In that case, at par[150], Buchanan, Ashley and Weinberg JJA observed that those who applied the force in question bore the onus of proving that they were lawfully justified in doing so. I mention that it is beyond question that a defendant always bears the onus of establishing contributory negligence, Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 at 463.

35 As to the law with respect to battery, in Carter v Walker (supra) at par[215], their Honours said the following, from which I have omitted the citations:

"215 ... [I]t is desirable to state what we understand the law with respect to battery otherwise to be in Australia:

(2) it is a so-called 'intentional' tort, but care needs to be taken in considering the intention which is relevant;

(3) as a starting point, it involves the defendant doing an act which causes physical contact with the plaintiff;

(4) the act must be voluntary, that is, directed by the defendant's conscious mind;

(5) ... the act must have a direct rather than a consequential impact upon the plaintiff ...;

(6) it does not require that the defendant intend the plaintiff any harm, or that the plaintiff suffer harm in fact. It is actionable per se;

(7) if the act is voluntary, and the defendant 'meant to do it' in the sense of meaning to contact the plaintiff, it will be relevantly intentional;

(8) it may be that an act should also be considered intentional if it is substantially certain that the act will result in contact with the plaintiff; and perhaps also if the act is reckless with respect to contact with the plaintiff. That may be the conceptual justification for the decisions in James v Campbell and Ball v Axtens;

(9) battery may be contrasted, historically, with two other forms of action: (1) action on the case; and (2) negligent trespass to the person (an early instance of which was Leame v Bray). A feature of the former was that it accommodated consequential rather than direct interference by the defendant upon the plaintiff. A feature of the latter was that it maintained the requirement of directness, but that it accommodated negligent rather than intentional acts in the sense that the defendant's act, though intended, was careless with respect to contact with the plaintiff;

36 The authorities cited in Carter v Walker (supra) for the requirement that the act must be voluntary, that is, directed by the defendant's conscious mind, are Hogan v Gill (1992) Aust Torts Reports 81 - 182, Morriss v Marsden [1952] 1 All ER 925 at 927, and Weaver v Ward [1792] EngR 2772; 80 ER 284. A further Tasmanian authority for this requirement is an unreported decision of Burbury CJ, dated 29 May 1959, Hart v Attorney-General at 2.

37 In this case, the first element of liability in issue is whether Mr Fox voluntarily, that is consciously, fired the gun. In par[109] of the above quoted passage from Quarmby v Oakley and Harper, I left open the question of where the onus of proof lies on issues of intent or negligence. In this case counsel for the defendant submitted that the plaintiff bore the onus of establishing that the defendant intentionally fired the gun, that is, pulled its trigger. Counsel for the plaintiff said that he did not quibble with what had been put to me on behalf of the defendant as to the law and the onus of proof. Notwithstanding counsels' agreement about where the onus lies, I recognise that the question of which party bears the onus of establishing intent or negligence is a vexed one. Having considered this question, I address the issue of whether the defendant intended to fire the gun on the basis that the plaintiff bears the onus on it. I do so because this approach accords with that taken in this Court by Burbury CJ in Hart v Attorney-General (supra) at 2, because it reflects the law with regard to trespass by means of a motor vehicle, Chin v Venning (1975) 49 ALJR 378, Gibbs J at 379, agreed with by Stephen and Mason JJ at 380, and because I agree with the view expressed by Kirby P in Platt v Nutt (supra) at 237, that the weight of judicial and academic opinion nowadays favours the view that it is for the plaintiff to aver and prove that the act of the defendant was either intentional or negligent. Kirby P's decision is the most recent detailed review of the law in this area that I have read and in it his Honour provides persuasive reasons for holding that, on an action for trespass to the person, the plaintiff retains the onus of proving that the contact that caused the injury was either intentional or negligent. I am also influenced by the preference expressed by Higgins CJ, Refshauge and North JJ in, Armellin v Ljubic [2009] ACTCA 22, par[27] for the approach of Kirby P in Platt v Nutt. I appreciate that their comment in this regard was obiter dictum. See also Fleming's The Law of Torts, 10th ed, Thomson Reuters (Professional) Australia Limited, 2011, par2.40.

38 The evidence of Mr Dale, Mr Fox and Mr Butler was to much the same effect on a number of matters, for example, none of them suggested that Mr Dale or any of those who accompanied him onto the property said anything to either Mr Fox or Mr Butler until after the shooting, if at all.

39 The evidence of Mr Dale differs from that of Mr Fox and Mr Butler on when the men got out of the back of the van. Mr Fox and Mr Butler say they got out before the gun discharged and Mr Dale says they got out after it discharged. I accept the evidence of Mr Fox and Mr Butler about this. Another difference between their evidence and that of Mr Dale is that he said Mr McIntosh did not force the gate and was not armed with a bar or pipe. I accept the evidence of Mr Fox and Mr Butler on these matters.

40 A difference between the evidence of Mr Butler and the evidence of Mr Fox and Mr Dale is that Mr Butler gave evidence of seeing Mr McIntosh and Mr Pearce run from the gate to the vicinity of the shooting. The evidence of Mr Fox and Mr Dale is that Mr McIntosh travelled from the gate in the van. I consider that Mr Butler's evidence about this is more reliable than theirs, and accept it.

41 Another difference in the evidence relates to whether Mr Dale and Mr McIntosh were out of the van at the house at the commencement of the confrontation. Mr Dale says they were not. Mr Fox says that they were out and he coerced them into the van. Mr Butler did not say in his police statement or his oral evidence that he saw Mr Dale out of the van before the shooting. He said that when the van arrived at the top of the driveway, Mr McIntosh was the only person outside, he having run there. At that stage Ben Pearce was still coming up the driveway. He said that when Mr McIntosh was near the back door of the house Mr Fox yelled at him something along the lines of, "Get back in the fucking car", and Mr McIntosh walked towards the van and got half in. He agreed that after this he saw Mr Fox pointing the shotgun into the van in the direction of Mr McIntosh and Mr Dale, and said, "Yeah, he was sort of waving it as in, like, fuck off get back in the fucking car". I do not derive from this answer an inference that Mr Dale was then or had been out of the van. My understanding of Mr Butler's evidence is that Mr Fox was then yelling at Mr McIntosh to get back in the van because he was not fully in it. Mr Butler was not asked whether Mr Dale was out of the van at any time before the shooting.

42 I have no hesitation in finding that Mr McIntosh was out of the van at the commencement of the confrontation and was coerced into the van by Mr Fox. As speaking generally I prefer the evidence of Mr Butler to any other witness, in the absence of evidence from him that Mr Dale was out of the van for any time before the shooting, I conclude that he was not. Whilst these and other findings mean that I have rejected aspects of Mr Fox's evidence, I do not consider that this impacts significantly on his credibility. In the circumstances that all the witnesses were in during the events that led up to the shooting and its aftermath, it is not surprising that there are contradictions in their evidence, and that witnesses are mistaken about particular matters.

43 There is no real doubt that Mr Fox's actions caused the gun to discharge. The issue is whether he knowingly pulled the trigger, or unintentionally pulled it, as he gestured with the gun and it made contact with the van door. Although it is conceivable that this contact alone may have caused the gun to discharge, in the light of the evidence of Constable Denholm, I consider this to be unlikely.

44 Mr Fox said that at the time the gun was discharged Mr McIntosh and Mr Dale had started to get out of the van. Mr Butler made no mention of this in his police statement or his oral evidence. Mr Dale denies taking any steps to get out of the van. Mr Dale says that after he pulled the van up, Mr McIntosh went to get out of the passenger door, and Mr Fox kicked the door back onto Mr McIntosh's shins. Mr Dale says that at this time Mr Fox was at the passenger door window pointing the gun straight at his and Mr McIntosh's heads. He "looked out towards ... the window and bang, that was it." The window was blown clean out. This evidence from Mr Dale provides some support for Mr Fox's evidence that Mr McIntosh was trying to get out of the van when the gun was discharged. However, this support is diminished because, on Mr Dale's evidence:

• Mr McIntosh arrived at the home as a passenger in the van;
• Mr McIntosh was never out of the van at the house, and
• the gun was discharged before the men in the rear of the van got out.

45 I am satisfied that at or about the time the gun was discharged, Mr Dale was not exiting the van. I am undecided as to whether, at this time, Mr McIntosh was endeavouring to do so. If he was he had not moved far. The passenger door was still between Mr Fox and Mr McIntosh. Following the discharge, on the evidence of Mr Butler, Mr McIntosh was still sitting in the passenger seat and Mr Fox's evidence is that Mr McIntosh was back in his seat. My satisfaction that when the gun discharged, Mr Dale was not exiting the van, and my uncertainty about whether Mr McIntosh was doing so, does not cause me to disregard Mr Fox's evidence that he believed Mr McIntosh and Mr Dale had started to exit the van at that time. Accepting that this was his belief it may have provided him with reason to fire the gun. More generally, with regard to Mr Fox's mental state, I pay regard to his belief that the intruders "... weren't there for coffee. They meant business and they were going to, without a doubt, cave my head in. I have no doubt whatsoever." In assessing Mr Fox's conduct, I am conscious that he was not aware that any intruder besides Mr McIntosh was armed.

46 It may be thought that if the discharge of the gun was accidental, Mr Fox would have immediately said so. He did not. The first reference in the evidence to the discharge being accidental is contained in Mr Butler's statement to the police. He said that, following the shooting:

"Trevor and I just sat around because we were pretty blown out by what had happened. Or how lucky we were to still be alive. Trevor said, 'I didn't mean to shoot them, it accidentally went off'. I said, 'Don't worry about it' I thought it was only glass or a ricochet that had hit them and didn't think they were badly injured."

47 I pay little regard to Mr Fox's failure to say to the intruders that the discharge was accidental or express regret about the injuries caused. Until such time as the intruders had left his property, that course could have been counter-productive. It is clear from Mr Fox's conduct that he did not consider that he would be safe until they had departed. For him to have said that the shooting was an accident and apologised may have reduced the intimidatory impact of the presence of the gun.

48 For the period between the arrival of the intruders and the gun's discharge, Mr Fox refrained from firing it and successfully used it to coerce Mr McIntosh into the van. Throughout this period the dynamics of the situation, as viewed by Mr Fox, changed. However, Mr Fox in effect denies that these changes brought about an alteration to his attitude to firing the gun. He denies firing it intentionally. I am unable to find in these changes and all the relevant circumstances, sufficient reason to reject Mr Fox's evidence about this. Having done my best to weigh up all the evidence and the countervailing factors, I am not satisfied on the balance of probabilities that Mr Fox knowingly fired the gun. Mr Dale has not established liability against Mr Fox.