Daly v Langlands [2014] ACTSC 209 (29 August 2014)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2014] ACTSC 209

The appeal is dismissed and the orders of the Magistrates Court are confirmed.

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - appellant convicted of assault occasioning actual bodily harm despite claiming self-defence - appeal against conviction - Magistrate not satisfied beyond reasonable doubt that appellant did not honestly believe it was necessary in self-defence to do what he did - Magistrate satisfied beyond reasonable doubt that there were no reasonable grounds for any such belief - Magistrate found no imminent threat but a conditional threat at most - appellant much shorter than complainant - appellant had pushed complainant at least once before punching him - independent evidence that complainant had not responded to pushing - whether finding of no reasonable grounds for belief in need to act in self-defence unavailable after finding that honest belief in need to act in self-defence could not be excluded - Magistrate's findings open to her - appeal dismissed.

Dal Cortivo v The Queen [2014] ACTCA 14

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645

1. Leigh Daly was found guilty in the Magistrates Court of assault occasioning actual bodily harm, arising out of an incident at Mooseheads on 12 August 2012 in which he punched the complainant once causing actual bodily harm (in particular, two of his teeth were knocked out). Mr Daly was convicted, sentenced to one month's imprisonment fully suspended subject to a 12-month good behaviour order, and ordered to pay reparation to the complainant in the amount of $3,750.

2. Mr Daly has appealed against the finding of guilt; he does not challenge his sentence.

3. At the Magistrates Court hearing, the prosecutor called evidence from the complainant Glenn Stumbles, two civilian witnesses (Christian Stevens and Jovillisi Draunimasi), and the informant Constable Langlands. The appellant gave evidence in the defence case.

4. The complainant gave evidence that he had been at Mooseheads on the night in question from about 1.00 am. He put his level of intoxication at about 6 on a scale of 1 to 10. At some point the complainant had seen the appellant acting inappropriately in relation to a group of young women dancing in the nightclub, as a result of which two other people, not known to the complainant, had been unfairly asked to leave. Shortly after this, the appellant walked past the complainant's table towards the main entrance of the nightclub and the complainant said to the appellant:

I seen what you did and ... You should have been the one that got kicked out.

5. The complainant said that the appellant swore at him and then punched him in the mouth. This punch had caused him to lose two front teeth. He had then grabbed the appellant in a bear hug in an attempt to protect himself from being punched and they both fell to the ground. They were then separated by the bouncers.

6. In cross-examination, the complainant denied that there had been an extended exchange with the appellant, concluding with the appellant offering to buy him a drink and the complainant refusing the offer with words along the lines of:

I'd rather take you out the back alley and belt the fuck out of you.

7. The complainant specifically denied that he had made this last comment, and also denied that he was angry, although conceded he was upset. The complainant also denied that the appellant had, before punching him, pushed him away three times, with two open hands to the chest area.

8. The complainant conceded that when he and the appellant had fallen to the ground, he had swung at the appellant in an attempt to defend himself.

9. Christian Stevens was out in Civic on the night in question for his friend's thirtieth birthday. They had ended up at Mooseheads at about 2.00 am. He gave the following evidence:

When you say it didn't look like it was going any further, what do you mean by that?---It was just a standard arguments people have. I mean it was just a conversation. They were both fairly heated. One was obviously saying something, the other retorted, those sort of things, but that was probably to the extent of it. It was one of those situations where in Mooseheads you see a lot. I wasn't expecting anything to erupt, let's put it that way.

Can you say how long that went on for?---It wasn't long at all. Again it all happened in a moment of seconds. So again I caught it out of the corner of my eye, caught my eye because again those things happen in Mooseheads. Moments later the shove came and then moments after that then the punch came.

Okay, so you just said moments after that - sorry, I'll just take you back to what they were doing?---Yes.

You say they were having an argument, could you hear what they were saying?---No.

Why was that?---The music was way too loud at that point.

So you just said that there was a shove, can you describe who shoved whom?---Okay, the gentleman on the left, again the shorter gentleman, had shoved the taller lad, the 6 foot 4 lad who was standing on the right, and it was just one of those shoves pushing away sort of shove, but again there was - he wasn't coming forward so I didn't see any - any need for it but that's my opinion, sorry.

MR EDMONDS: Sorry, I didn't hear that.

THE WITNESS: Sorry, I apologise about that, yes.

MS JAMIESON-WILLIAMS: Sorry - - -?---Again it's just a shove.

HER HONOUR: You said he wasn't coming forward, who wasn't coming forward?---The gentleman on the right-hand side.

The taller gentleman?---The taller gentleman, yes.

So he was shoved and he stayed back in the shoved position?---That's correct.

MS JAMIESON-WILLIAMS: Can you tell the court what happened next?---Again he stood his ground and he stood up a little straighter as you do, so straightened up the back. And then in that moment a right hand jab came out and hit him in the face.

From whom?---From the gentleman on the left-hand side, the left shorter gentleman.

Could you describe the jab? What do you mean by jab?---It was a very quick nice right-hand jab. It was again there wasn't - it came pretty quickly as well. Hit him square in the mouth just under the nose and, yes, it was just a quick sharp jab. The guy fell to- - -

10. In cross-examination Mr Stevens confirmed that the push or shove was definitely two-handed, but might have been aimed more at the complainant's left shoulder. He had only seen one shove. He was 100% certain that the complainant had not moved back in towards the appellant after that shove. Mr Stevens described the earlier interaction between the two men as follows:

Now, can I also ask you this: you say that the first thing you noticed about these two men on the evening was that they were having a verbal argument, or you may have used the words "a heated conversation"?---Yes.

Can I ask you what it was about the taller man, what he was doing and saying that caused you to think they were having a heated conversation?Again, a lot of aggressiveness came from the shorter man through those conversations, and it was just he was almost that nonchalant - the taller man, sorry - that nonchalant, like, yes, I don't know exactly what the argument was about but it just looked like, as I said, he didn't look he was all that particularly wanting to have a fight. He was just making a statement or saying something where I obviously the shorter man looked like he had taken offence.

11. Mr Stevens said that after he left Mooseheads, he approached the bouncer to say that the complainant was not at fault, and the bouncer had asked him to tell the police officer that.

12. Jovillisi Draunimasi had been working at Mooseheads as the glass handler on the night in question. He became aware of two people exchanging words near the front door. [T 42] He gave the following evidence:

Now, you said that you walked past them. What, if anything, did you see or hear?After I heard the exchange of words I heard a sound which sounded to me as someone getting hit in the face.

Sort of like a punch or a slap to the face? What did it sound like to you?

Someone getting hit in the face.

What did you do then?I turned to where the sound was coming from and saw the shorter male throwing punches at the taller male. The taller male was walking backwards

Sorry. Could you just go back a bit?Yes.

The shorter male, what did he do when you turned around?He was throwing punches.

Okay. Then what happened?The taller male was defending himself by walking backwards and preventing his face from getting hit.

How was he doing that?He was walking backwards and pushing the shorter male away.

What was the shorter male doing at this time?He was throwing punches, and then the taller male pushed the shorter male to the floor, and then that's when I came in and tried to stop the fight.

13. In cross-examination, Mr Draunimasi gave the following evidence:

Okay. Now, you also say that you heard these two men exchanging words. That was the first thing that you noticed about these two men on the night, is that right? Yes.

Would you agree that they were saying things to each other for at least thirty seconds? When I got there, I'd say five seconds.

And you also say that you saw the shorter male throwing punches, are you saying that - do you remember whether any of them actually landed? It landed around the chest area.

Is it possible that the taller man had grabbed the shorter man at this stage, like, in a bear hug? Do you know what I mean by bear hug? Yes, yes.

Is it possible that the taller man had the shorter man in that sort of hold when the short man was punching? Is that what was happening? Yes, and then he pushed.

All right, and then the taller man pushed the shorter man away? Yes.

And the shorter man fell over and ended up on the ground? Yes.

14. The appellant gave evidence. He said that as he was leaving Mooseheads around 3.00 am, he noticed the complainant, who was sitting at a table near the front door, staring at him, so he said "see you later, mate" as he walked past. He went on:

Did Mr Stumbles react to what you said to him at all? Yes, he did.

He did? Yes.

What did he do or say? As I said that to him, he said to me, "You're an effing smart arse."

HER HONOUR: Sorry, he said? "You're an effing smart arse."

MR EDMONDS: All right. And did you respond to that at all? Yes, that's - it was at that point then that I stopped and sort of turned around to face him, so I was then 90 degrees to the doorway.

Now, I'll just ask you to stop there? Yes.

Why did you stop at that point? Why didn't you just keep going out the front doors? It was very - it was a strange comment to come out of - out of his mouth, just out of the blue.

All right? Yes.

So, again, what was going through your mind at that point, when he said that to you? At that point I was sort of a little bit worried.

All right? A little bit offended, I suppose.

All right. Do you know exactly why you stopped really? Why I stopped?

Yes, at that point? It was just - it was just an odd comment to be made out of the blue. I don't usually get talked to like that.

Okay. And then, sorry, did you respond to that, that further comment? I then said, "Oh, excuse me."

And what did you mean by that? The comment he made about being a smart arse, I just wanted to know where it come from, what I'd done to offend him.

Okay. And did he respond to that? He said, "I've been watching you all night, starting trouble and running off like a dog."

And what started to go through your head at that point, when he said that? Well, I mean, he's a lot taller than what I am, bigger. I was a little bit scared at that point in time.

All right. And, again, at that stage did you have any idea what had caused him to say that? Not - not a thing at all.

And did you do or say anything in response to that? I just said to him that we'd been there most of the night, didn't have - have trouble with anyone and - yes, didn't have - basically didn't have any trouble with anyone that night and I was sorry if I've - I said, "I think you've got the wrong person."

Did you say anything else to him? No, that was pretty much it, at that point.

15. In cross-examination the appellant agreed that he had not told the police when he was interviewed shortly after the incident that the complainant had said to him "I'd rather take you out the back and belt the fuck out of you". He also agreed that the complainant's comment to him had made him angry, but denied that he had ever sworn at the complainant. He agreed that he had pushed the complainant:

Okay. And you said that you did that because you wanted him to get back?---I felt threatened, yes.

You felt threatened. You didn't get back, did you?---Not at that point, no.

You didn't take a step back?---I wasn't going to turn my back on him.

No, you didn't take a step back?---Correct.

You didn't get back at all, did you?---No, correct.

You could have done that, couldn't you?---Possibly.

Then you punched him in the face, is that right?---Well, before I - before I pushed him, he stepped into me. I did push him several times and then I did strike him, yes.

16. The appellant asserted that he was definitely intimidated by the complainant, despite agreeing that he had initiated the verbal exchange and he had also been the one to make the first physical contact. He asserted that he had been provoked by the complainant. In re-examination it was agreed among counsel and the Magistrate that the word "provoked" had been used in an ordinary English meaning rather than as a technical legal term.

17. The appellant gave evidence that after the incident he had asked the police to retrieve the CCTV footage of the incident, which he believed would show that he had been provoked.

18. Evidence was given that the complainant was 6'1" tall and the appellant was about 5'6" tall.

19. Her Honour found, by reference to the evidence of the two independent witnesses, that the defendant had been the aggressor and the complainant had been the recipient of that aggression. She went on, however, to note that the complainant might not have been "the most reliable witness" and that he might have said words that might have provoked the defendant. By reference to these findings, she said that she was "not entirely convinced that the defendant honestly believed that he needed to strike [the complainant] in order to protect himself", but that she could not be satisfied beyond reasonable doubt that he did not have that honest belief.

20. Her Honour then considered the reasonableness of the appellant's actions. She said:

In my view, even if Mr Stumbles had said to the defendant, "I want to take you out the back and belt the fuck out of you," that was not a threat that something would happen immediately. It was a contingent threat, that is, on their being out the back, or perhaps even an expression of a desire rather than an imminent threat.

In my view, given that it was a drinking venue in Canberra, and not somewhere, as I have said, in the Wild West, I am not - or I am satisfied beyond reasonable doubt that the defendant's action in striking Mr Stumbles at that point was not reasonable, and therefore he - the prosecution has negatived the issue of self-defence beyond reasonable doubt, and I am satisfied that the charge is proved to that standard.

the decision of the Magistrate was unsafe and unsatisfactory.

The learned Mag erred in finding that the appellant's belief that it was necessary to act as he did in self-defence, was unreasonable.

22. Only the second appeal ground was argued at the hearing. Counsel expressly disclaimed any intention to pursue the "unsafe and unsatisfactory" ground, noting that the Magistrate's finding in relation to whether the appellant believed it was necessary to act as he did in self-defence was not challenged.

23. The parties agreed that the test for self-defence in a case of this kind is as set out in Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645 (Zecevic) at 661 (Wilson, Dawson and Toohey JJ) as follows:

The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.

24. This test can be broken down into two questions arising from this test:

(a) whether the defendant had an honest belief that it was necessary in self-defence to do what he did; and

(b) whether in all the circumstances there were reasonable grounds for the defendant's belief that it was necessary in self-defence to do what he did.

25. It was not in dispute before me that the Magistrate applied the correct test in determining whether the appellant should be found not guilty on the ground that he acted in self-defence, although there was in fact some looseness in her Honour's articulation of the test.

26. Her Honour indicated, as set out at [19] above, that she could not be satisfied beyond reasonable doubt that the appellant had not believed that it was necessary to do what he did in self-defence. That is, the prosecution had not excluded self-defence by establishing the absence of an honest belief to the relevant effect.

27. However, as quoted at [20] above, her Honour then said that "the prosecution has negatived the issue of self-defence beyond reasonable doubt", in reliance on a finding "beyond reasonable doubt that the defendant's action in striking Mr Stumbles at that point was not reasonable". The parties seem to have accepted this formulation as adequate to describe a conclusion that there were no reasonable grounds for the appellant to believe that striking the complainant at the point and in the manner that he did so was necessary in self-defence. In particular, the second appeal ground (the only one that was argued), was framed as a challenge to what was said to be the Magistrate's finding "that the appellant's belief that it was necessary to act as he did in self-defence, was unreasonable".

28. The error asserted on behalf of the appellant was, in effect, that her Honour should not have concluded that the appellant's belief, if any, was not reasonable. This was said by the appellant's counsel to be a conclusion not open to her Honour.

29. Counsel identified four aspects of the circumstances that, he said, meant that her Honour's finding about whether the appellant's belief was reasonable was simply not open to her, being:

(a) whether there was an immediate threat to the appellant from the complainant;

(b) the size difference between the appellant and the complainant;

(c) that the appellant had already attempted to deal with the threat by pushing the complainant away; and

(d) whether there were alternatives open to the appellant to avoid the threat.

30. As noted, counsel's argument was that having regard to four aspects of the evidence, it was not open to her Honour to find that even if the appellant did have the necessary belief about the need to act in self-defence, such a belief was not reasonable.

31. Her Honour indicated (see [19] above) that she did not find the complainant's evidence completely reliable. In particular, she seems to have considered that he might have said more to the appellant than he had conceded in evidence, and that some of what he said might have "provoked" the appellant. However, the evidence of the two independent witnesses to the effect that the appellant had been the aggressor means, in my view, that despite her reservations about the complainant's evidence, it was open to her Honour to find that there had been no threat of immediate attack. In particular, her Honour was entitled to take the view that the exchange even as described by the appellant did not constitute an imminent threat. That alleged exchange as reported by the appellant was to the following effect:

Appellant: I'll shout you a drink.

Complainant: I'd rather take you out in the back alley way and belt the fuck out of you.

32. As a matter of sentence structure the complainant in that exchange has simply expressed a preferred alternative to being bought a drink by the appellant, rather than making any threat at all.

33. Accepting, however, that although not literally expressed as a threat, the complainant's response was offensive rather than conciliatory, I still cannot see that it was not open to her Honour to conclude:

(a) first, that there was no imminent threat to the appellant; and

(b) secondly, that any threat that had been made was, in her Honour's words, "a contingent threat" or perhaps merely an expression of a desire.

34. If it was open to her Honour to find, as she did, that there was no imminent threat to the appellant, then the other bases on which her Honour's conclusion was said not be open to her seem to fall away.

The size difference between the appellant and the complainant

35. The evidence was that the complainant was some seven inches taller than the appellant. The appellant gave evidence that the height difference was one of the reasons why he feared for his safety. There was also evidence that the appellant was "stocky" or solidly built.

36. If her Honour had been satisfied that the appellant faced an imminent threat from the complainant, the complainant's significantly greater height might well have been relevant to the reasonableness of the appellant's belief. If her Honour was satisfied that there was no the threat, however, then the height difference is irrelevant; it is clearly not the case that anyone who finds him or herself in the presence of a taller person is, for that reason alone, justified in a pre-emptive assault on the taller person.

37. The evidence that the appellant had pushed the complainant before punching him was, as I understand it, referred to in support of the proposition that the force used by the appellant was not disproportionate to the threat he faced. However, if there was no threat, then the proportionality of the response was irrelevant.

38. The complainant denied that the appellant had pushed him three times before punching him, while conceding that it "could be possible" that he had been pushed before being punched. Both the appellant and Mr Stevens gave evidence that there had been some pushing. However, the independent evidence of Mr Stevens was also that the complainant had not responded to that pushing by moving back in towards the appellant. That is, the independent evidence, while supporting the claim of a push, did not provide any basis for the appellant to assert that his attempt to push the complainant away so as to avoid the claimed threat had failed and accordingly that he then needed to punch the complainant in self-defence.

39. As noted, if there was no imminent threat, then there was nothing for the punch (or possibly even the push) to respond to. If there had been an imminent threat as claimed by the appellant, it was still open to her Honour to find beyond reasonable doubt that the push did not need to be followed up, having regard to Mr Stevens' evidence that the complainant had not responded to the push by approaching the appellant.

40. The fact (if her Honour had so found) that the appellant had, on his evidence, tried to address the claimed threat with a relatively non-violent response would not as such have excluded a finding by her Honour that there were nevertheless no reasonable grounds for the appellant to believe that he needed to throw a punch, especially given the independent evidence that the push did not appear to have escalate the threat, if any, posed by the complainant. There is no issue of proportionality that her Honour overlooked or failed to address properly.

41. Counsel for the appellant pointed to the appellant's evidence that the complainant was between him and the front door of the nightclub, that he was scared to turn his back on the complainant and that he believed that the bouncers were not willing to intervene in the altercation between him and the complainant This evidence, he said, established that the appellant genuinely believed that his only option was to push the complainant and then, by way of a pre-emptive strike, to punch him in the face.

42. The main difficulty with this submission is that if the appellant faced any threat from the complainant, it was apparently a threat of being taken out the back and beaten up. It was entirely open to her Honour on the evidence (including the evidence of the appellant) to reject any claimed belief on the appellant's part that the complainant was about to hit the appellant before he could reach the door of the nightclub and the protection of the bouncer.

43. Having regard to the fact that the incident took place only a couple of metres from the front door where at least one bouncer was standing, and the evidence of the independent witnesses about where the aggression came from, and the appellant's own evidence about the nature of the claimed threat to him, it was clearly open to her Honour to conclude beyond reasonable doubt that at the time of the assault, there were no reasonable grounds for the appellant to believe that he needed to punch the complainant in order to defend himself.

44. Counsel for the appellant referred me to two authorities in support of his argument that the Magistrate's finding about self-defence should not stand.

45. First, he quoted Mason CJ in Zecevic at 654, who said of the adoption of the test set out by Wilson, Dawson and Toohey JJ (quoted at [23] above):

The risk that an accused person may be convicted of murder when he lacks reasonable grounds for his belief that the degree of force used was necessary for his self-defence will be alleviated by several factors. It is for the Crown to establish that there was an absence of reasonable grounds for the accused's belief. A jury will be slow to make such a finding if the Crown has failed to satisfy them that the accused did not honestly believe that the force used was necessary. And the jury will not return a verdict of murder unless it is satisfied that there was an intention to kill or to do grievous bodily harm. [emphasis added]

46. Relying on the statement that "A jury will be slow to make such a finding if the Crown has failed to satisfy them that the accused did not honestly believe that the force used was necessary", counsel argued that the Magistrate, having indicated that she was not satisfied beyond reasonable doubt that the appellant did not believe he needed to act in self-defence, should not have found that any such belief would have been unreasonable.

47. The difficulty with this submission is that it ignores the clear fact that the test provided in Zecevic was intended to have two limbs, and that the second limb, whether there were reasonable grounds for any belief held by the accused, was intended to provide an objective element to the test for self-defence (Zecevic at 652 per Mason CJ, 657-659 per Wilson, Dawson and Toohey JJ, 673 per Deane J).

48. No doubt in consideration of the two limbs of the Zecevic test, the question whether the accused honestly held the claimed belief will in many cases be determined having regard not just to the accused's own evidence but to whether that evidence is credible having regard to the objective circumstances as he or she perceived them. This does not mean, however, that if the accused's claim to have held the honest belief is accepted, the question of the reasonableness of that belief is automatically or necessarily answered in the accused's favour. Such a position would in fact achieve the result sought by the appellant in Zecevic (that there should be no objective element to the test for self-defence) that was comprehensively rejected by the High Court.

49. The application of the Zecevic test does not, in order for criminal liability to be avoided, require the court to find beyond reasonable doubt that the accused held the honest belief concerned - rather, the first question is whether the prosecution has established beyond reasonable doubt that the accused did not hold that belief. In this case the Magistrate made it very clear that she was not satisfied that the appellant had held the relevant belief, but that she was not satisfied beyond reasonable doubt that he had not held it. Such a conclusion does not seem to have any necessary implications for the available findings on the question whether the belief claimed by the appellant was reasonable. Mason CJ's suggestion that a jury "would be slow to find" an absence of reasonable grounds for an accused's honest belief does not mean that there are no circumstances in which a fact-finder could reach such a conclusion.

50. Secondly, counsel referred to Dal Cortivo v The Queen [2014] ACTCA 14 , in which the Court of Appeal said at [16], in relation to the factual situation raised by the particular appeal:

In the present case it could not be said that the statement by the complainant could not reasonably be interpreted as an indication of an intention to fight with the accused. Nor could it be said that the striking of one blow was a disproportionate response to that apparent threat. The fact that the complainant had, in fact, no such intention is not material. There was thus no real issue as to the objective presence of reasonable grounds for the appellant to perceive a threat that the complainant might strike him.

51. The fact that the evidence in Mr Dal Cortivo's trial could reasonably have been interpreted as indicating an intention on the part of the complainant to fight with Mr Dal Cortivo does not establish that the Magistrate dealing with the appellant was obliged to find that, on the different evidence before her, there were reasonable grounds for the appellant to perceive a threat that the complainant might strike him.

52. The Magistrate had the advantage of observing the various witnesses giving their evidence, and appears to have based some of her conclusions on her assessment of those witnesses. However, her conclusions do not appear to be inconsistent with what has been referred to as the "intrinsic merit or demerit in the evidence" in this case (see Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [30], Gleeson CJ, Gummow and Kirby JJ). Certainly there is no basis on which I could find that her Honour's decisions about the evidence she accepted and the evidence on which she based her conclusions were contrary to "incontrovertible facts" or "compelling inferences" or produced a decision that was "glaringly improbable" (Fox v Percy at [28] and [29]).

53. I reject the submission that her Honour erred in finding (albeit not expressed in exactly those words) that there were no reasonable grounds for the appellant to believe that he needed to act as he did in self-defence. That conclusion was clearly open to her Honour on the evidence before her.

54. The appeal must be dismissed and the orders of the Magistrates Court confirmed.

I certify that the preceding fifty-four [0] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.