Director of Public Prosecutions v Evans

Supreme Court of NSW|2017-02-02|Before: Davies J

Solicitors: Solicitor for Public Prosecutions (Plaintiff) Self-represented (Defendant) File Number(s): 2016/216777 Decision under appeal Court or tribunal: Local Court of NSW Jurisdiction: Criminal Date of Decision: 14 March 2016 Before: Brown LCM File Number(s): 2016/216777

Judgment

On 14 March 2016 his Honour Magistrate Brown in the Local Court at Penrith found the Defendant not guilty of two offences being assault officer in the execution of his duty and resist officer in the execution of his duty. The Director of Public Prosecutions (NSW) appeals pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) against the dismissal of those charges by Magistrate Brown. The DPP seeks an order that the matter be remitted to the Local Court to be dealt with according to law. Under s 56(1) an appeal may only be brought on a ground that involves a question of law alone.

Background

On 12 March 2015 Constable Russell Budin and Constable Alexandra Kent attended a house fire in Londonderry in response to a 000 call. Officers from the NSW Fire Brigade and the Rural Fire Services were in attendance.
Constable Budin, the complainant, saw the Defendant standing on a verandah hosing the roof of the house. Constable Budin was asked by one of the fire officers to remove the Defendant from the verandah for his own safety. The fire officer informed Constable Budin that the house was filled with asbestos fibro and that the roof might collapse.
Constable Budin saw the Defendant standing on the verandah between the house and an extra room on the right hand side of the house. The Defendant had a hose in his hands and was hosing the roof of the house.
According to Constable Budin he approached the Defendant and the following exchange occurred: I Said: "Mate get down, the roof might come down on you." The Accused Said: "I am not going fucking anywhere" I Said: "Yes you are, get out of there or you're going to get hurt" The Accused Said: "I am not fucking going anywhere, the fucking firie's (sic) took 40 minutes to get her [scil. here] I Said: "Get down here now I don't want to see you get hurt" The Accused Said: "well fucking make me then".
Constable Budin said that he walked up the three or four steps on to the veranda and took hold of the Defendant by his clothing. He walked down the stairs, presumably pulling the Defendant with him, and back onto the front lawn or driveway area. Constable Budin said that at this point the Defendant started swinging punches towards his head in a downward motion. He felt the Defendant hit him at least three times on the top of his head and forehead.
Constable Budin ducked down and used his arms to cover his head and he took a step to the side. He then stood up and used a closed fist hammer strike with his right hand to the left side of the Defendant's neck. He then stepped back and yelled "Get back, you're under arrest". The Defendant brought both his hands up to head height and stood in a boxer's stance. At that point Constable Budin removed his capsicum spray from his belt and delivered a short burst into the Defendant's face. The Defendant then turned around and ran towards the rear of the property. Both Constable Budin and Constable Kent attempted to follow and find the Defendant but were unsuccessful in doing so.
The Defendant later spoke to Constable Budin on the telephone. Constable Budin told the Defendant that he should come to Penrith Police Station. The following day the Defendant came of his own accord to Penrith Police Station and participated in an ERISP. His account of what happened appears as his answer to question 51 as follows: I didn't want to stop fighting the fire, I kept fighting the fire, and I put the hose down, I dropped it, and I tripped over that hose, went down the stairs, the copper, I don't know what his name was, with the beard, he was halfway up the stairs, I was sort of like, fell down the stairs, kicked me tow (sic), fell down the stairs, he took a bit of the brunt, like he saved me from just going face first into the concrete, we hit the concrete, he got up, he took a swing, he done a full three sixty with his fist, he got me right here in the lip um, and on the second half of his there (sic) sixty he had his mace out and he sprayed me in the face. It was either fight or flight for me at that time, and I flight, I run, I run, I tripped over about four or five times, I run down the back to my house and I washed my face, which was the worst thing I could have done because it just made it ten times worse …
The matter was heard on 14 March 2016. Constable Budin gave evidence in accordance with what has been recorded above. Constable Kent gave evidence which largely corroborated Constable Budin's evidence although she was not able to hear what was said between Constable Budin and the Defendant. She did hear Constable Budin call out to the Defendant after he ran off "Get back here, you are under arrest".
The Defendant gave evidence where, in contradistinction to his ERISP in which he said he tripped and fell on Constable Budin, he said that Constable Budin dragged him down the stairs. He also denied punching Constable Budin and denied the initial conversation that Constable Budin gave evidence about.
The Defendant also called his half-brother, Christopher Smith, whose evidence was that the police told the Defendant to get down from where he was, that the Defendant refused by shaking his head and remaining, that the police officer stepped up and took hold of the Defendant's shirt and that they fell to the ground with the Defendant tripping. He saw a small struggle on the ground and when both of them stood up the police officer swung around and punched the Defendant's lower left lip. He then sprayed mace on him. Mr Smith said he did not see the Defendant punch the police officer.

The Magistrate's judgment

The learned Magistrate, having recited matters concerning the charges and the fire went on to say: It was Constable Budin's evidence that he saw Mr Evans on the veranda of the property below a roof that was on fire, using a hose to try and put the fire out in that area. He considered it appropriate to try and get Mr Evans away because of the undoubted risk of the building collapsing. Notwithstanding the fact that I accept that it is still standing today, the risk was a very palpable one at the time, as it always is in fire situations. He indicated to Mr Evans that he wanted Mr Evans to come down. Mr Evans was standing on a small set of steps just up to the height of the veranda which he says is a bit over a metre and a half above the ground. Mr Evans declined. It is here that the versions of events start to diverge. Constable Budin's evidence was that he put his hand up and took hold of Mr Evans by his clothing, he says. At this point, he says, the accused started swinging punches towards his head. Whatever may be Constable Budin's desires, he needs to have some lawful authority to apply force to another, like any other human being, and if he lacks it, then his action will be criminal, and the defendant, in this case, will be entitled to use reasonable force to resist. Insofar as Constable Budin's actions being within the execution of his duty, I think the authorities that Mr Pawar has drawn my attention to, particularly DPP v Gribble which of course is binding upon this Court, that Constable Budin's actions were, in the words of Barr J, "Circumstances gave rise to a duty on the part of the officers to do what they reasonably could to remove the defendant and others from the dangers to which his action was giving rise. They twice required him" in this case "to get off the road and he twice refused". I stop the quotation there because it follows that on this occasion, that is in Gribble's case, the defendant was irrational. There is nothing to suggest, in my view, that Mr Evans, focused though he might have been and perhaps dehydrated, was in any way irrational. He certainly wanted to pursue fighting the fire and, of course, that is something which he would be normally both entitled and encouraged to do but I think it is quite clear that in the present situation, a police officer seeking to persuade somebody in Mr Evans' position to come away from the fire is certainly acting in the execution of his duty, and I think that follows, as has been said in the authorities, once that process commences or that status commences, it continues until something appears to stop the officer being acting in the execution of his duty. Nothing at the moment seems to have reached that point. At this point, Constable Budin's evidence was that Mr Evans swung punches to his head. Certainly, in the normal course, Mr Evans would be entitled to resist an attempt to apply physical force to him. This is completely independent of the concept of acting within the execution of his duty. It is part of the statutory defence of self-defence set out in s 418 of the Crimes Act. It seems to me that if that version is correct and the actions of Mr Evans are designed to enable him to pursue what he quite clearly and repeatedly indicated was his desire to protect property from unlawful taking, destruction, damage or interference, then, it seems to me that Mr Evans would have a defence of self-defence open to him on those circumstances. It was Constable Budin's further evidence that he ducked down and he struck Mr Evans a brachial, closed fist, hammer strike, otherwise known as a punch, to the left-hand side of his neck. He said, "Get back, you're under arrest". What he was under arrest for is a little hard to fathom. Nonetheless, these are clearly tense circumstances for both and, clearly, the constable then resorts to the use of capsicum spray. It seems to me that if that scenario is accepted as accurate, the assault upon Constable Budin, asserted as a consequence of him seizing hold of the defendant and pulling him, would be, given the circumstances and, again, taking account of the tension, not unreasonable (sic) responded to by an attempt to dissuade the assailant from putting his hands back onto Mr Evans. It seems to me that that conduct in Mr Evans' mind was clearly necessary, that is his conduct in continuing to fight the fire without being distracted by the officer, and it would, in my view, be a reasonable response to that. Certainly, there was nothing to suggest that the struggle on that version was in any other way prolonged. This, of course, was not Mr Evans' version of events. He said he was grabbed and pulled down the stairs, and there seems to be some supporting evidence for that on the evidence of his half-brother, Christopher, but, in any event, that version does not support any indication of blows being struck by Mr Evans to Constable Budin. Certainly, it is perhaps a matter of curiosity that the issue as to blows being struck seems to have taken some months to come to the surface and only seems to have proceeded to prosecution well after the event but why that decision was taken is a little difficult to fathom. Ultimately, the most troubling part, because in terms of the major authorities, the Court cannot take account of evidence that it does not have, there are a lot of potential witnesses here, practically none of them have given evidence. There were potential witnesses on both sides: members of Mr Evans' family, I see only Christopher is called today, although I understood from Mr Doughty there were other witness who he chose not to call but far more importantly, there is a large number of police, police from the Hawkesbury Local Area Command, fire fighters, the rural fire service, most of which would, I imagine, have had similar views about Mr Evans' attempts to fight the fire by himself and who also would no doubt have sought to persuade him to go away, yet, not one of them has been called to give evidence or even sought to be called to give evidence. That is a factor which, following Louizos and High Court's decision in Dwyer, has to be taken into account in determining whether the prosecution has proved its case beyond reasonable doubt. In terms of the self-defence issue, the prosecution must of course disprove that beyond reasonable doubt. In my view, if I accepted Constable Budin's version, the defence of self-defence would be clearly made out on behalf of Mr Evans. If the opposite version is taken and Mr Evans' evidence is accepted that he has been pulled down from the stairs but has not struck any blows and has simply been capsicum sprayed and struck himself to the lip and there is no doubt that the lip injury occurred. Even more clearly is it (sic) a case where the defendant has not in fact committed an assault on the officer at all. Either way, it seems to me that the prosecution case is fatally flawed. On both counts, I find the defendant not guilty. The charges are dismissed. (emphasis added)

The appeal

The DPP relies on four grounds of appeal, asserting that the learned Magistrate erred in law in: 1. proceeding on the basis that s 418(2)(c) of the Crimes Act can provide a defence of self-defence in circumstances where the complainant is not said to have unlawfully threatened the defendant's property; 2. holding, or proceeding on the basis, that the objective element of the defence of self-defence in s 418 of the Crimes Act can be satisfied where there is no concurrence between the source of the threat and the target of the otherwise unlawful conduct constituting the alleged self-defence; 3. finding that self-defence had been raised, in accordance with accordance with ss 418 and 419 of the Crimes Act; and 4. failing, as an aspect of his duty to give reasons, to make findings about the central factual matters in contest between the prosecution and the defence, including whether the defendant committed the acts constituting the offences charged.
When the matter was called on for hearing there was no appearance for the Defendant. Senior Counsel for the DPP read a number of affidavits dealing with notifications to the Defendant and drew attention to two specific legislative provisions regarding requirements for service of material in appeals under the Crimes (Appeal and Review) Act. I ruled that the hearing should proceed in the absence of the Defendant. My reasons for doing so are as follows.
Part 51B of the Supreme Court Rules 1970 (NSW) applies to appeals to the Court under Part 5 of the Crimes (Appeal and Review) Act where s 56 appears. Rule 11 requires that the summons instituting the appeal be served on the defendant personally on the day the summons is filed or as soon as practicable thereafter. The affidavit of David Gillard sworn 3 August 2016 proved service of the Summons, an affidavit in support and a notice under s 10 of the Director of Public Prosecutions Act 1986 (NSW) on the Defendant personally.
Although no solicitor filed a Notice of Appearance indicating that they represented the Defendant the solicitor who had appeared for the Defendant before the Magistrate, Michael Doughty, was informally acting for the Defendant in an attempt to obtain Legal Aid for the present proceedings. An affidavit of Dominique Anne Kelly sworn 2 February 2017 sets out in detail the contact between the solicitor for the DPP and Mr Doughty. The material in that affidavit demonstrates that Mr Doughty was informed of the hearing date which had been appointed by the Registrar on 26 October 2016. It was also clear from the correspondence annexed to that affidavit that Mr Doughty had been in contact with the Defendant, and the Defendant was aware from conversations with Mr Doughty that the hearing was listed for 2 February 2017.
The material annexed to Ms Kelly's affidavit showed also that on two separate occasions the DPP had forwarded all the material prepared by the DPP since the Summons had been served to the address where the Defendant lived and had lived for some years. That material clearly indicated that the hearing was to be on 2 February 2017. It must be accepted, however, that this material forwarded by the DPP was not served personally.
Part 51B r 16 provides: 16 Amendment (1) The summons by which the appeal is instituted and any statement under rule 8 may be amended by the plaintiff without leave by filing a supplementary notice not less than 7 days before the day appointed for hearing. (2) The plaintiff must, on the day of filing the supplementary notice, serve it on the other parties and must file or lodge a copy of it in accordance with rule 13 as if it were a summons. (3) Subrule (1) does not affect the powers of the Court under Part 20 (which relates to amendment).
The relevance of that Rule is that the Summons filed on 18 July 2016 was amended by a Supplementary Notice filed 14 December 2016. That Supplementary Notice expanded the factual background set out in the Summons and amended the grounds of appeal in form although not in substance. The effect of r 16 when taken with r 11 required personal service of the Supplementary Notice.
However, s 62 of the Crimes (Appeal and Review) Act 2001 relevantly provides: 62 Effect of defect in notice of appeal or application for leave to appeal … (4) An appeal court may dispose of an appeal or application for leave to appeal, despite the relevant notice or application having not been served on an interested party, if it is satisfied that the party: (a) is aware of the date, time and place fixed for dealing with the appeal or application and has not been prejudiced as a consequence of the notice or application having not been served, or (b) is avoiding service of the notice or application, or (c) cannot, after reasonable search and inquiry, be found.
In the light of the evidence in Ms Kelly's affidavit I was satisfied that the Defendant was aware of the date, time and place fixed for dealing with the appeal and that he had not been prejudiced to the extent that the supplementary material had not been personally served.

Extension of time

Part 51B r 6 provides an appeal must be instituted within 28 days after the material date. The material date is defined in r 3, relevantly, as meaning the date on which the decision is pronounced or given.
The Magistrate's decision was given on 14 March 2016. The Summons was not filed until 18 July 2016. The DPP seeks an extension of time up to the date of the filing of the Summons.
The explanation for the delay is found an affidavit of Liza Brown sworn 16 December 2016. Ms Brown is a police officer in the role of Legal Officer - Appeals. She is tasked with receiving requests for an appeal from police prosecutors, assessing the merits of those requests, and forwarding them to the office of the DPP.
On 15 March 2016 she received a request for an appeal from Senior Constable Pawar who had prosecuted the matter at Penrith Local Court. She promptly sought the material from him which was received on or before 21 March 2016. On that day she drafted a letter to the Office of the DPP requesting an appeal. However, she overlooked sending the letter to the DPP. From 21 March until 15 June she believed she had sent the email attaching the letter.
She was on leave from 1 April to 27 April 2016. After she returned from leave she twice reviewed an internal police spreadsheet and saw that the matter had not been allocated to a solicitor at the DPP with the result that no decision had been made about whether an appeal would be filed. It was only when she spoke to the Advisings Manager on 15 June that she discovered she had never sent the letter of 21 March 2016.
The matter is far from satisfactory. Ms Brown should be taken to know that appeals are to be lodged within 28 days of the decision. When she received an email from Senior Constable Pawar requesting an update (as she did when she was on leave) she ought to have made contact with the DPP immediately on her return to work or requested another officer in her office to do so. Merely checking an internal police spreadsheet and seeing that the matter had not been allocated at the DPP was an inadequate response given the time limits imposed by the Rules.
However, the Defendant does not appear to complain about the oversight on Ms Brown's part and the delay which it engendered. Nor is any particular prejudice to the Defendant apparent in contradistinction to the general prejudice in the matter remaining unresolved. I consider, therefore, that an extension of time should be granted to the date of filing of Summons.

Legislative provisions

The charges were laid under s 58 of the Crimes Act 1900 (NSW) which provides: 58 Assault with intent to commit a serious indictable offence on certain officers Whosoever: assaults any person with intent to commit a serious indictable offence, or assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable, or other peace officer, custom-house officer, prison officer, sheriff's officer, or bailiff, or any person acting in aid of such officer, or assaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence, shall be liable to imprisonment for 5 years.
The relevant provisions of the Crimes Act relating to self-defence are these: 418 Self-defence - when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them. 419 Self-defence - onus of proof In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence. … 422 Self-defence - response to lawful conduct This Division is not excluded merely because: (a) the conduct to which the person responds is lawful, or (b) the other person carrying out the conduct to which the person responds is not criminally responsible for it.

Submissions

In relation to ground 1, the DPP submitted that s 418(2)(c) of the Crimes Act had no application because there was no "unlawful taking, destruction, damage or interference" by Constable Budin. There was no other basis for the application of s 418 with the result that self-defence had no role to play in the determination of the charges.
In relation to ground 2, the DPP submitted that the Magistrate erred in law in proceeding on the basis that the objective element of self-defence within s 418, namely that the conduct is a reasonable response in the circumstances as perceived by the Defendant, can be satisfied where there is no concurrence between the source of the threat and the target of the otherwise unlawful conduct constituting the alleged self-defence. The DPP submitted that the police officer was not the source of any threat to the Defendant's property within the meaning of s 418(2)(c).
In relation to ground 3, the DPP submitted that the Magistrate erred in holding that self-defence had been raised in accordance with ss 418 and 419 of the Crimes Act. Whether self-defence is raised is a question of law and not of fact even though it involves an evaluation of the evidence. The DPP submitted that there must be evidence capable of supporting a reasonable doubt in the mind of the tribunal of fact as to whether the prosecution has excluded self-defence.
In relation to ground 4, the DPP submitted that the Magistrate had failed in his duty to give proper reasons in that he failed to make any finding on the central factual issue about whether or not the Defendant assaulted Constable Budin by punching him.

Consideration

By reason of the overlap of the grounds of appeal it is convenient to deal with them together.
As a preliminary matter, a few things should be noted about the Magistrate's judgment. First, his Honour found that a police officer seeking to persuade someone in the Defendant's position to come away from the fire was certainly acting in the execution of his duty. Secondly, his Honour found that the Defendant would be entitled under s 418 to a defence of self-defence by resisting any attempt to apply physical force to the Defendant when his clear desire was to protect his property from unlawful taking, destruction, damage or interference. Thirdly, his Honour said that it was a little hard to fathom what the Defendant was under arrest for. Fourthly, his Honour found that the most troubling part of the case was that there were a lot of potential witnesses on both sides who did not give evidence. Fifthly, his Honour made no findings on the principal issue of fact about whether the Defendant punched Constable Budin but he said that if he accepted Constable Budin's version then the defence of self-defence would be clearly made out on behalf of the Defendant.
The Magistrate correctly held that the Defendant was acting within the execution of his duty. His Honour correctly considered that he was bound by the decision of DPP v Gribble [2004] NSWSC 926. Further support can be found in Coyle v State of New South Wales [2006] NSWCA 95 at [72] and, in a situation where, unlike in Gribble, the defendant could not be said to be acting irrationally, see Director of Public Prosecutions (NSW) v Araura [2012] NSWSC 1120.
Implicit in the finding that Constable Budin had acted within the execution of his duty in grabbing the Defendant by his clothing to pull him away from the fire was the notion that Constable Budin's actions were reasonable and necessary in all the circumstances: Gribble at [23] and [29]; Araura at [18]. It was then necessary for the Magistrate to deal with the central factual dispute being the issue of whether the Defendant assaulted Constable Budin by punching him. Until that matter was determined, and determined in favour of the account given by Constable Budin and supported by Constable Kent, no issue relating to self-defence could possibly arise.
In Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713 Johnson J said: [54] Where a Magistrate determines to dismiss a charge, whether on the ground of no prima facie case or because, on all the evidence, the Magistrate is not satisfied beyond reasonable doubt of the guilt of the accused person, then there is an obligation for the Magistrate to give reasons for that decision. Likewise, if the Magistrate determines to find the accused person guilty of the offence. [55] The provision of reasons for a decision is, amongst other things, an expression of the open justice principle. The centrality, to the judicial function, of a public explanation of reasons for final decisions has long been recognised: Wainohu v State of New South Wales [2011] HCA 24; 243 CLR 181 at 213-215 [54]-[58]. [56] There is no provision applicable to Magistrates such as s.133 Criminal Procedure Act 1986, which applies to trial by Judge alone on indictment. Nevertheless, it is part of the Magistrate's duty to state the facts found and the legal principles applied to those facts, for the purpose of reaching a verdict: Donges v Ratcliffe [1975] 1 NSWLR 501 at 507. In Moloney v Collins [2011] NSWSC 628, the Court said at [63]-[65] (in the context of a civil hearing in the Local Court): "[63] Failure to give reasons as required by law may itself disclose error of law: Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-279. However, the extent and content of the reasons required will depend upon the particular case and the issues under consideration. [64] The duty does not require the trial Judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings: Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at 41. It is essential to expose the reasoning on a point critical to the contest between the parties: Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [58]. [65] Appropriate allowance should be made for the pressures under which Magistrates are placed by the volume of cases coming before them: Director of Public Prosecutions v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 at 407-408 [15]-[18]." [57] Judges of this Court have emphasised repeatedly the obligation upon a Magistrate to give reasons for a decision in criminal proceedings in discharge of the Magistrate's judicial duties, whilst keeping in mind the practical reality of delivery of ex tempore reasons in a busy court: Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited at 407-408 [15]-[19]; Munro v ACP [2012] NSWSC 100 at [21]-[23]; Director of Public Prosecutions v Sukhera [2012] NSWSC 311 at [16]-[17] and Director of Public Prosecutions v Langford [2012] NSWSC 310 at [33]. [58] In Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited, I observed at 408 [18]-[19]: "[18] One of the conventional functions of the requirement to give reasons is that a statement of reasons may be necessary to enable a party to exercise a right of appeal or such other rights as the party may have to contest the decision: Pettitt v Dunkley (1971) 1 NSWLR 376, 387, 388; Donges v Ratcliffe (1975) 1 NSWLR 501 at 507; Housing Commission of NSW v Tatmar Pastoral Co Pty Limited (1983) 3 NSWLR 378 at 386. The defendant and the prosecutor have a statutory right of appeal to this Court under the Appeal and Review Act arising from the determination of criminal proceedings in the Local Court. [19] It is not satisfactory that an appeal court is left to undertake an analysis of exchanges between the bench and counsel during submissions in an attempt to ascertain a magistrate's reasons for determination: R v Pham [2005] NSWCCA 94 at paragraph 11; R v Thompson (2005) 156 A Crim R 467 at 474-5 (paragraph 32). The provision of concise reasons as required by law will avoid this circumstance occurring. It is necessary that magistrates keep in mind the obligation to provide reasons when determining summary proceedings under s.202 Criminal Procedure Act 1986."
In Downes v DPP [2000] NSWSC 1054 the Plaintiff was charged with driving whilst disqualified and using an unregistered and uninsured motor vehicle. The prosecution case depended in part upon admissions by the Plaintiff to a police officer. The Plaintiff challenged the admissibility of those admissions on the basis that he had been induced to make them by a statement from the interviewing police officer to the effect that the Plaintiff would only be fined. Whether the admissions should be admitted attracted consideration of ss 85 and 90 of the Evidence Act 1995 (NSW). The Magistrate heard the evidence on the voir dire and, after hearing submissions, ruled that the evidence of the admissions ought to be admitted into evidence. On appeal to this Court Studdert J said: [14] Before this Court it was submitted that the magistrate erred in law in ruling that the evidence of admissions ought be admitted into evidence. Although the police officer had denied telling the plaintiff he would only have to pay a fine and not go to court, the plaintiff's evidence was to the contrary. A finding by the magistrate resolving this conflict in the evidence was essential having regard to the provisions of ss 85 and 90. In particular, s 85 rendered the evidence inadmissible if there was such a promise or inducement made unless the circumstances made it unlikely that "the truth of the admission was adversely affected": s 85(2). Plainly it was necessary for the magistrate to decide whether an inducement or promise was made; if so, then he was required to determine whether the truth of the admissions was adversely affected. Unless satisfied that the circumstances made this unlikely, the evidence was to be excluded. [15] Notwithstanding the importance of the finding as to whether any inducement or promise had been made, the learned magistrate expressed no finding as to this in the course of his judgment. The transcript records that the magistrate reviewed in short form the evidence given on the voir dire but he expressed no finding on the question of whether or not the inducement was made. [16] It was submitted by Mr Jordan, on behalf of the plaintiff, that this omission and the subsequent failure to address s 85 in the manner that the circumstances required, amounted to error of law. Ms Burgess, who appeared for the defendant, did not seek to argue to the contrary. [17] I accept the submission advanced by Mr Jordan. The plaintiff was entitled to have an expression of the magistrate's finding on the critical conflict in the evidence as to whether any promise or inducement was made. The plaintiff was entitled to have the magistrate state not only his relevant finding but also how such finding impacted upon the application of s 85. In the much cited judgment of McHugh JA in Soulemezis v Dudley Holdings Pty Limited (1987) 10 NSWLR 247 his Honour said at 279: "…however without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion, the giving of reasons is correctly perceived as 'a necessary incident of the judicial process' because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law."
In the course of submissions before the Magistrate both the prosecutor and the solicitor for the Defendant made clear that there was a factual issue that needed to be determined and that the issue arose not only from the conflict between the police witnesses on the one hand and the Defendant and his witness on the other but because of inconsistencies between what the Defendant had said in his ERISP and what he said in Court. The solicitor for the Defendant said during the course of his submissions: There is a factual issue about what actually happened. The Defendant says he didn't strike the constable at all, not in the manner alleged. So your Honour has to resolve that factual issue.
The failure of the Magistrate to make findings of fact about what actually happened was an error of law. The issue of whether the Defendant punched the police officer was the critical issue. The error was so fundamental that it undermined the whole process. The Magistrate should not have gone about his task, as he did, by saying that even if he accepted Constable Budin's evidence self-defence would operate with the result that the prosecution could not succeed. Until the Magistrate made precise factual findings about what occurred he was in no position to deal with the matter of self-defence, particularly because it involved the question of what a reasonable response was by the Defendant.
Although, for the reasons given, error has been identified with the result that the matter should be remitted, it is important to consider the issue of whether self-defence was available.
The only basis upon which self-defence was available was in reliance on s 418(2)(c) of the Crimes Act. Whilst the Magistrate understood that that was so, his Honour assumed, without considering the matter, that the Defendant's desire was to "protect property from unlawful taking, destruction, damage or interference". Whilst it is the case that the Magistrate did not receive any assistance in relation to the law in this matter, that appears to be because it was the Magistrate himself who suggested that the Defendant was asserting self-defence. That was not at all obvious. Nothing in the evidence led by the Defendant nor the cross-examination by his solicitor suggested anything other than that he had not at any time struck the police officer except by accidentally falling on him as the Defendant tripped and fell down the stairs.
In The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013 the Respondent had been convicted at trial of the murder of his wife. He had denied any involvement in her death. On appeal the Court of Appeal of Queensland set aside the murder conviction and substituted one of manslaughter on the basis that there might well have been a confrontation that did not involve any intent on his part to kill or inflict grievous bodily harm.
In restoring the conviction for murder the High Court said: [48] Further, a criminal trial is accusatorial but also adversarial. Subject to well-defined exceptions, "parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue." … [52] In any event, this is not a case where the accused remained silent. It is a case where the accused gave evidence. The present case is stronger for the prosecution than the Crown case in Weissensteiner [Weissensteiner v The Queen (1993) 178 CLR 217] because here the respondent gave evidence, which not only did not support the scenario hypothesised by the Court of Appeal, but was inconsistent with that scenario. The respondent's evidence was that he had nothing to do with the circumstances in which his wife was killed. On his evidence he simply was not present when her death occurred; and he could not have been the unintentional cause of her death.
In Douglas v R [2005] NSWCCA 419 Simpson J (Adams and Hoeben JJ agreeing) said in the context of a criminal trial with a jury: [99] Given that, in respect of this count, the appellant simply denied the conduct alleged against him, it is impossible to see how a direction on self-defence could rationally have been given. On what evidentiary matters was the judge to direct the jury? The answer given by the appellant, extracted above in [70], is indicative, not of self-defence or even self-protection, but of retaliation. The only evidence was that of the complainant that the appellant had punched her and that of the appellant denying her evidence. There was not the slightest evidence that the complainant had initiated any altercation, whether verbal or physical, and no evidence from which any such inference could be drawn. There was no evidence on which a jury could have any conclusions as to the appellant's perception of the circumstance.
In Flanagan v R [2013] NSWCCA 320 the appellant complained that the trial judge should have left self-defence to the jury. She had been charged with wounding with intent to cause grievous bodily harm. The appellant had become involved in a fight initiated by her brother against the victim.
The Court of Criminal Appeal said: [86] The appellant did not give any evidence that she became involved in the fight because she believed it was necessary for her to do so to defend her brother. The highest her evidence went was that she left the car and followed her brother in the event that it was necessary to stop any fight or to prevent any repetition of what she believed was the needle stick injury the complainant had earlier inflicted. She submitted, however (and we accept), that s 418(2) does not require an accused to give direct evidence of belief that it was necessary in the particular circumstances to act defensively if there is a basis for that belief from other evidence or as a matter of inference from that evidence. In this case, the appellant relied upon the evidence of Ms Becker, who observed the fight from her car and to a lesser extent the evidence of Mr Milne. … [89] The appellant's evidence was that she was trying to break up the fight. The appellant did not contend that her evidence was sufficient to establish the requisite belief in s 418(2) that "the conduct" (in this case the use of a knife were the jury to conclude that she was so armed) was necessary to defend her brother, or that there was any basis elsewhere in the evidence for her to have formed the belief that the complainant was or might be armed with a syringe when she involved herself in the fight initiated by her brother… . [90] Further, there was simply no evidence that would satisfy the second limb of s 418 . [91] A case of self defence involves an acceptance or admission that the accused person inflicted a wound or engaged in an assault or that the jury might reason to that conclusion. As previously said, the appellant's complaint that self defence should have been left to the jury bears the same tactical difficulties that confronted counsel in Douglas. A case of self defence was contrary to her case that she did not have a knife or implement that could have caused the wound and that she did not stab the complainant. Therefore, if the appellant wished to contend, as she now does, that she acted in defence of her brother, she had to: (a) advance a case to the jury that using the knife in the manner depicted in the CCTV footage and wounding the complainant was in self defence; (b) satisfy the trial judge that the evidence raised a question of self defence even if not positively advanced by her; or (c) satisfy this Court that there was a miscarriage of justice because self-defence was otherwise raised by the evidence, obliging the trial judge to direct the jury in accordance with ss 418 and 419 and that the failure to do so has deprived her of a fairly open chance of an acquittal.
In Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293 Hodgson JA (with whom Handley and Ipp JJA agreed) said: [19] In my opinion, the following principles are applicable in this case. (1) By reason of the onus of proof provided by s.419, all that is needed to raise self-defence is evidence capable of supporting a reasonable doubt in the mind of the tribunal of fact as to whether the prosecution has excluded self-defence. Thus, in relation to s.418(1)(a), there needs to be evidence capable of indicating a reasonable possibility of a belief by the accused that the conduct constituting the offence was necessary to defend himself or herself or others, and of a perception of circumstances such that the accused's response was reasonable. However, the evidence must be capable of doing this as a matter of legitimate reasoning and not mere speculation: to that extent, I agree with R v. Imadonmwonyi [2004] VSC 361 at [21] and R v. Mekic [2004] SASC 44 at [5]. (2) It is not essential that there be evidence from the accused as to the accused's beliefs and perceptions: evidence of circumstances from which inferences may be drawn as to the accused's relevant beliefs and perceptions may be sufficient. However, if the accused does not give evidence of his or her beliefs and perceptions, then generally, in the absence of other evidence suggesting the contrary, inferences have to be drawn on the basis of what beliefs and perceptions a person in the position of the accused could reasonably hold in the circumstances.
In my opinion, there was no evidence in the present case which gave rise to a need on the Magistrate's part to consider, as the tribunal of fact, the issue of self-defence. Nothing suggested that the Defendant had any belief that he was acting in self-defence. The Defendant gave no evidence that he believed his conduct was necessary, but that was precisely because he denied hitting the police officer. As Colosimo makes clear, in the absence of such direct evidence, ordinarily inferences will be drawn on the basis of what beliefs and perceptions a person in the position of the Defendant could reasonably hold. The Magistrate made no finding about whether such a person could reasonably think that punching a police officer in the head three times was necessary in the circumstances of this case.
The Defendant's case, as in Baden-Clay, Douglas and Flanagan, was inconsistent with that defence. Although, after the Magistrate raised the matter, the solicitor for the Defendant agreed that s 418 was raised, no basis for that was articulated. The thrust of the Defendant's submissions before the Magistrate was that the police officer was not acting in the execution of his duty and that the factual dispute ought to be found in the Defendant's favour.
There is a further reason why the issue of self-defence did not arise. That is because the destruction or damage of the property had to be unlawful destruction or damage and the unlawfulness had to be able to be attributed to the person against whom the defence was raised.
In R v Burgess; R v Saunders [2005] NSWCCA 52 Adams J with whom James J and Newman AJ agreed said of the statutory defence of self-defence: [12] … It is, in the context of the present case, important to note two other issues posed by the subsection. Firstly, with respect to the matters referred to in paragraphs 418(2)(b) and (c), the prevention or termination undertaken by the accused will only be conduct in self-defence if he or she is responding to unlawful conduct of the specified kind. Whether such conduct is indeed unlawful is, obviously, not a matter of fact and, if the behaviour were lawful the defence would be excluded even if the accused thought he or she was responding to unlawful behaviour. Similarly, the behaviour specified in paragraph (d) must in law amount to criminal trespass before the defence applies and a mistaken belief by the accused about the matter will not avail. … [15] The statutory defence, however, is qualified in that the specific terms of paras 418(2)(b)(c) and (d) require that the conduct sought to be resisted by the use of otherwise unlawful conduct must itself be unlawful and that s422 applies only to conduct undertaken for the reason specified in para 418(2)(a).
Acting Justice Newman also said this: [53] However, there is one observation which I wish to make. Essentially, the appellants contended that they were entitled to raise the concept of self defence (or as they put it "the defence of others") in a situation where the crime with which they were charged involved the vandalising of the property of an entity which had no connection whatsoever with the entity against whom they claimed their actions were taken by way of defence. As is made clear by the authorities and legislation cited by Adams J in his judgment, the concept of self defence only arises where the actions of the accused by way of self defence are directly taken against the person threatening the accused or another's being or property. If it were necessary to delve into the reasons of public policy why this is so, the simple reason why it is, is that it would be outrageous for the situation to be otherwise. Attacks in one form or another against innocent people could be justified by the attacker by raising self defence against an unrelated third party - as is claimed here. The common law has never countenanced such a concept, nor would, I believe, the community ever accept such a proposition as representing a just law. (emphasis added)
There was no evidence that any destruction or damage of the property by the fire was unlawful, but even if it was it was not in any way related to Constable Budin. As Newman AJ made clear the concept of self-defence only arises where the actions of the accused by way of self-defence are directly taken against the person threatening (here) the accused's property.
Moreover, the reasonableness of the Defendant's response to the police officer's attempt to pull him away from the fire had to be judged from the perspective that the police officer was not the source of any threat to the Defendant's property, that the police officer was acting lawfully, and judged by the extent of any force being applied to the Defendant by the police officer. Further, the reasonableness of the response could be judged in the light of the Defendant's subsequent action, after punching the police officer in the head on a number of occasions, in running away and hiding rather than going back to fight the fire and protect his property.
Section 418 was never engaged in this case. For these reasons, the errors of law identified in grounds 1 - 3 are also made out.

Conclusion

In the light of the errors found the matter should be remitted to the Local Court for determination according to law. The DPP asks that the matter be dealt with by a magistrate other than the Magistrate the subject of the appeal. Although credit findings were not made by the Magistrate some of the comments made in the judgment suggest that the matter would be better dealt with by a magistrate who comes to the matter afresh.
At one point the Magistrate made reference to Constable Budin's evidence at the point where he punched the left-hand side of the Defendant's neck and said "Get back, you're under arrest". The Magistrate commented "What he was under arrest for is a little hard to fathom". It is difficult to see how the Magistrate could have made that comment unless he had disbelieved Constable Budin's evidence that he had been punched a number of times by the Defendant.
A little further in the judgment the Magistrate commented that: It is perhaps a matter of curiosity that the issue as to blows being struck seems to have taken some months to come to the surface. That comment is made in the face of Constable Budin's statement dated 13 March 2015 (the day after the fire and the incident) where he makes reference to having been punched by the Defendant. It is also in the face of the Defendant's ERISP conducted on the same day where the allegation that the Defendant punched to Constable Budin was squarely put to the Defendant who denied it. The comment of the Magistrate might be thought to suggest that the account given by Constable Budin of being punched was not mentioned for some months after the incident, a matter that would cast considerable doubt on Constable Budin's credibility.
Accordingly, the orders that I make are these: (1) Extend time to appeal to 18 July 2016. (2) Order pursuant to s 62(4) of the Crimes (Appeal and Review) Act 2001 (NSW) that the appeal be heard and dealt with in the absence of the Defendant notwithstanding that the Supplementary Notice of Appeal was not personally served on the Defendant. (3) Appeal allowed. (4) An order setting aside the order of Magistrate Brown on 14 March 2016 at Penrith Local Court dismissing the charges against the Defendant of assault police officer in execution of his duty and resist police officer in execution of his duty contrary to s 58 of the Crimes Act 1900 (NSW). (5) Order that the matter be remitted to the Local Court to be dealt with according to law by a magistrate other than Magistrate Brown. (6) Order that the Defendant pay the Plaintiff's costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 February 2017

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