Appeal against convictions for assault - Criminal Code (WA), s 254 - Defence to assault of using such force as is reasonably necessary to remove a person who wrongfully remains in a place - Whether or not implied licence cancelled - Whether or not force used was such as was reasonably necessary for such removal

Appeal against convictions for assault - Application of Criminal Appeals Act 2004 (WA), s 14(3)

Criminal Appeals Act 2004 (WA), s 14(2), s 14(3)

1 This is the hearing of an appeal by leave I had previously granted, on a single ground.

2 The appeal is against the appellant's convictions on two charges that were tried together. Both were charges of the offence of common assault, contrary to Criminal Code s 313(1)(b). Both such assaults were alleged to have been committed on Michael Grant Nowland, and to have occurred at Walkaway on premises occupied by the appellant, not far from Geraldton in this State. (I note in passing that in the transcript of the hearing before and decision of the learned Magistrate in relation to these assaults, Mr Nowland's name is spelt "Noland". In my extracts from the transcript below, I have not corrected that spelling.)

3 One such assault was alleged to have occurred on 26 December 2004 ("the December 2004 occasion"). The other such assault was alleged to have occurred on 28 August 2005 ("the August 2005 occasion").

4 The applicant, who was legally represented at the trial of these charges, represented himself before me.

• The proper application of the ground of justification or excuse to a charge of assault for defence of property, in Code, s 254; and
• The application of the proviso on an appeal in Criminal Appeals Act 2004 (WA), s 14(2) and (3).

6 In this judgment I first review the proceedings appealed from, and then review the proceedings before me. I then turn to consider the ground of appeal. The final part of this judgment is my orders.

7 The appellant's trial was on 31 May 2006 before Magistrate Sharatt in Geraldton. His Honour delivered his judgment on the same day. He convicted the appellant on both charges, and sentenced him to a two month conditional release order on the assault of 26 December 2004, and a fine of $500 on the assault of 28 August 2005. His Honour also ordered costs in the amount of $465.34.

8 The assaults arose out of the return of the appellant's daughter to the appellant's house at Walkaway on the dates in question. The appellant's daughter Amy was then about 12 years old. The appellant and Amy's mother, Lynette, had been separated for some years. They had joint custody of Amy. Nowland was a friend of Lynette's. On each occasion Nowland had been driving the vehicle used to return Amy to her father's house at Walkaway, and Amy and her mother had been the passengers in the vehicle.

9 At the trial, Nowland, Lynette, two police officers, Amy and the appellant all testified.

10 The learned Magistrate found that it was not in dispute that the appellant had struck Nowland on both occasions. That finding appeared not to be not in contest before me, although the appellant appeared to contest the evidence as to the extent of the force applied, particularly on the first occasion. However, it appeared not to be in contest that the force applied on each occasion was at least a blow to Nowland. I will return below to the evidence as to the nature of the force used, as that evidence bears directly on the appeal.

11 It is also not contested before me that, absent a ground of authorisation, justification or excuse (Code, s 223), the striking in each case was an "assault" within Code, s 222, that was "unlawful".

12 In relation to the alleged assault on 26 December 2004, the learned Magistrate noted the defence had relied on Code, s 254. That provision reads as follows:

"(1) For the purposes of this section and section 255, the term place means any land, building, structure, tent, or conveyance, or a part of any land, building, structure, tent, or conveyance.

(2) It is lawful for a person (the occupant) who is in peaceable possession of any place, or who is entitled to the control or management of any place, to use such force as is reasonably necessary -

(a) to prevent a person from wrongfully entering the place;

(b) to remove a person who wrongfully remains on or in the place; or

(c) to remove a person behaving in a disorderly manner on or in the place;

provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm to the person.

(3) The authorisation conferred by subsection (2), as limited by the proviso to that subsection, extends to a person acting by the occupant's authority except that if that person's duties as an employee consist of or include any of the matters referred to in subsection (2)(a), (b) or (c) that person is not authorised to use force that is intended, or is likely, to cause bodily harm."

13 This defence, if properly raised on the evidence, must of course be negatived by the prosecution beyond a reasonable doubt. The learned Magistrate, in relation to the charge arising out of the December 2004 occasion, proceeded on the basis that the defence had been properly raised on the evidence before him, but that the prosecution had negatived it beyond a reasonable doubt.

14 The learned Magistrate found that it was not in contest that, in September 2004, following a dispute, the appellant had ordered Amy, Lynette and Nowland "off the premises and told them to leave" (TS 109). However, the learned Magistrate also found that subsequently the appellant had Amy back to the premises in Walkaway, having insisted she be returned to him there, thereby giving "implicit consent" to Lynette to return her daughter. While the appellant had not given Nowland "any permission", the learned Magistrate found it was "not demonstrated to any standard or even if there's any doubt" that Nowland, when he dropped Amy back at the house at Walkaway, "was under the impression he was still barred from going there" (TS 109).

15 After noting evidence from Amy that she may have communicated to Nowland before the incident of 26 December 2004 that her father did not want Nowland to go back, at least on to the premises, the learned Magistrate indicated he accepted the evidence of Lynette and Nowland that (TS 109):

"At the time he came to drop Amy off at the premises of Mr Drage although it may well have been an unwise act he was not at any stage at that time told to leave - told not to come back on the premises."

16 The learned Magistrate also said he did not take the view that "at any time a request to leave was ever received by Mr Noland and that the assault was simply that, a series of assaults" (TS 110).

17 The learned Magistrate also referred to the appellant's "version of events" as insufficient for the purposes of the defence of removal of a person "who wrongfully remains in the place" (TS 110). He said:

"He hasn't even put to him that he should leave, and he hasn't given him enough opportunity to leave. Walking towards him yelling out threats and imprecations isn't enough to say that he's wrongfully remained on the place."

"As to whether the message - leaving a message through his 12-year-old daughter to tell someone to leave is effective communication, I don't think it is, and it's not been shown to any degree that it was. In fact, both Michael Noland and Miss Drage say that it really depended on Mr Drage's mood as to whether it was all right to come and go or not."

19 In relation to the alleged assault on 28 August 2005, the learned Magistrate stated "it's not claimed that this occurred through a need to defend his property against trespassers" (TS 111). It is common ground that the defence in Code, s 254, had indeed been put to his Honour, and there was evidence, from the appellant, on which the defence might be rested.

20 His Honour went on to identify, as the defence "relied on", Criminal Code, s 248, with respect to self-defence. However, His Honour concluded that the latter defence had not been "raised". I will return to that conclusion below, even although leave to appeal was not granted in respect of that conclusion. That is because the basis for that conclusion has, in my view, a bearing on the present appeal.

21 It is common ground that the defence had in fact "relied on" the defence in Code, s 254, in relation to the alleged assault on the August 2005 occasion, as well as that on the December 2004 occasion.

22 On 7 November 2006 I granted leave to appeal, on the following ground and particulars:

"That the learned Magistrate erred in law in not correctly applying the law in relation to his consideration of the defence in Criminal Code s 254 in its application to the first and second charges.

Particulars

1. There was at law no implied licence to Mr Nowland to return Amy pursuant to the joint custody arrangement as Mr Nowland was not a party to the underlying Family Court proceedings or to the joint custody arrangement;
2. Even if there was at any time an implied licence to Mr Nowland to return Amy pursuant to the joint custody arrangement, the licence had been properly withdrawn and such withdrawal not cancelled at least as regards Mr Nowland:
   • The testimony of Mrs L Drage at TS 60 with respect to the baseball bat in July 2004.
   • TS 10 - TS 11 with respect to the conversation concerning the bat, heard by Mr Nowland.
   • The instruction to Mr Nowland among others to leave the property in September 2004.
   • The evidence of Amy Drage with respect to telling Mr Nowland and Mrs Drage not to come onto the property: TS 96."

23 At the initial hearing of the appeal before me, on 16 March 2007, it became evident that the respondents did not have a copy of this ground as so formulated. The leave to appeal had not been extracted, and the formulation the respondents had been using appeared to have been compiled from notes of the hearing, the transcript of which was likewise not available. From the formulation the respondents had been using, it was reasonably apparent the respondents had a reasonable basis to expect the appeal to be focussed exclusively upon the question of whether or not Nowland had had the right to enter the appellant's land on the two occasions on which he was assaulted, and, if he had, whether or not that right had been revoked so as to make him a person wrongfully remaining on the appellant's land for the purposes of Code, s 254. The respondents had not considered any of the other aspects of the application of that defence were in issue.

24 The appellant for his part had made written submissions not clearly directed to those other aspects, which indicated to me the original particulars had not been formulated in a way to bring home the need to address those other aspects.

25 After hearing from both the appellant and the respondents, I concluded both that the other aspects of Code, s 254, were indeed intended to be subsumed by the ground of appeal, and that the particulars should be amended to make that clearer. Further, in view of the version of the ground the respondent had been using, it was appropriate to adjourn the hearing to permit both the appellant and the respondent the opportunity to prepare new submissions to engage all of the material aspects of the defence.

26 Accordingly, the ground of appeal on which the parties presented their respective cases at the final hearing was in the form above, but with the following two further particulars added:

"a. Even if there was at any time an implied licence to enter the Appellant's property, that licence was countermanded and Mr Nowland was given a reasonable opportunity to withdraw from the property.

1. The Appellant used such force as was reasonably necessary to remove Mr Nowland from the property."

27 The ground of appeal so particularised raises questions of mixed law and fact and was so treated by the parties in their submissions to me.

28 After reviewing the principles of law that determine the application of Code, s 254, in the respects that are relevant to this appeal, I will turn to the ground, so particularised.

The application of Code s 254 in the relevant respects

29 I previously set out the provisions of Code, s 254.

30 There is no question in this case of the appellant not having been in peaceable possession of the premises in Walkaway, or of preventing Nowland's entry on those premises.

31 As I will explain below, in my view the learned Magistrate erred in his approach to the application of the defence in Code, s 254, to the first assault, that on the December 2004 occasion.

32 I have already explained that it is common ground the learned Magistrate erred in not considering the application of that defence to the second assault, that on the August 2005 occasion, to have been "relied on" by the defence. As I explain below, it seems to me that that conclusion entailed there was sufficient evidence before the learned Magistrate for it to be necessary for a conviction in respect of that assault that that defence be negatived beyond a reasonable doubt.

33 It follows from those conclusions that the appeal must be allowed, unless Criminal Appeals Act 2004 (WA), s 14(3), applies. That provision reads as follows:

"(3) The Supreme Court is not required to set aside or vary a decision of a court of summary jurisdiction because the court omitted to make any necessary finding of fact if the facts or evidence -

(a) in substance support the decision; or

(b) justify the finding,

and the Supreme Court, under subsection (1), may instead either vary the decision or substitute another decision for it."

34 The application of the predecessor to that provision, Justices Act 1902 (WA), s 199(3), was referred to in a factual setting also involving the application of Code, s 254, in Prior v Kemp [2001] WASCA 363, per Templeman J, at [150] as follows (and see Murray J, [11], approving the formulation of the test in the same terms, in the judgment appealed from, Prior v Kemp [2001] WASCA 22, by Hasluck J, at [45]):

"It was common ground that s 199(3) of The Justices Act cannot be applied unless the facts found by the Magistrate or the evidence were such as to lead inevitably to the conviction: see Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1."

35 The issues in this appeal on those conclusions thus would resolve to whether or not the facts as found by the learned Magistrate or the evidence were such as to lead inevitably to a conviction, on the basis he ought to have had no reasonable doubt that the assaults on Nowland were unlawful, in that they did not represent the application by the appellant of force within the relevant parts of Code, s 254.

36 In determining whether or not Nowland was a person who wrongfully remained on the premises, it was not in dispute that the common law of trespass to land was determinative. The relevant principles of the common law appear to me to be these.

37 The starting point is that a person who enters property "without the leave or licence" of the person in possession commits a trespass unless the entrant has some other lawful authority to enter: Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1, per Brennan J, at 10, a passage quoted with approval in Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635, per Mason CJ, Brennan and Toohey JJ, at 639.

38 The leave or licence of the person in possession may be express or implied. There appears to have been no question in this case of an express licence, with a possible exception I reach below.

39 The law implies a licence to enter, as is indicated in Halliday (supra), per Gibbs CJ, Mason, Wilson and Deane JJ, at 6 - 7:

"While the question whether an occupier of land has granted a licence to another to enter upon it is essentially a question of fact, there are circumstances in which such a licence will, as a matter of law, be implied unless there is something additional in the objective facts which is capable of founding a conclusion that any such implied or tacit licence was negated or was revoked: cf. Edwards v Railway Executive [[1952] AC 737], at p 744. The most common instance of such an implied licence relates to the means of access, whether path, driveway or both, leading to the entrance of the ordinary suburban dwelling-house. If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house. Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it. The occupier will not however be heard to say that while he or she had neither done nor said anything to negate or revoke any such licence, it should not be implied because subjectively he or she had not intended to give it: see, generally, Robson v Hallett [[1967] 2 QB 939], at pp 950-952, 953-954; Lipman v Clendinnen [(1932) [1932] HCA 24; 46 CLR 550], at pp 556-557; Lambert v Roberts [(1980) 72 Cr App R 223], at p 230."

40 There is a distinction between entering a house and approaching it, a commonly cited statement of which is in Robinson v Hallett [1967] 2 QB 939, per Lord Parker CJ, at 950 - 951 said this (see also Diplock LJ at 953 - 954; and Ashworth LJ, at 955):

"What is said in this case, and this is really the foundation of counsel for the appellants' argument, is that all three police officers were trespassers ab initio; having arrived at the garden gate, although up till then they were acting in the execution of their duty, making inquiries into an offence committed that night, yet the moment when they set foot onto the steps leading up to the front door they were all three trespassers. For my part, it is no doubt true that the law is sometimes said to be an ass, but I am happy to think that it is not an ass in this respect, because I am quite satisfied that these three police officers, like any other members of the public, had implied leave and licence to walk through that gate up those steps and to knock on the door of the house. We are not considering for this purpose the entering of private premises in the form of a dwelling-house, but of the position between the gate and the front door. There, as it seems to me, the occupier of any dwelling-house gives implied licence to any member of the public coming on his lawful business to come through the gate, up the steps, and knock on the door of the house."

41 If there is a licence, the entrant does not become a trespasser unless further conditions are met, a widely cited statement of which is from Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 6055, at 631, per Dixon J, which was referred to in connection with Code, s 254 in Prior, Hasluck J (supra), at [40], a reference not commented on in this respect in the judgments in Prior v Kemp, appeal (supra).

42 In Cowell (supra), Dixon J, at 631, said this:

"A licensee does not become a trespasser until he has received notice that the licence is countermanded and until a reasonable time has elapsed in which he may withdraw from the land and remove whatever property he has brought in pursuance of the licence (Cornish v Stubbs [(1870) LR 5 CP 334])."

43 It will be noted that the requirement just described, for a reasonable time to elapse after countermand of the licence, is in relation to some one who had a licence at entry. It follows that a person who does not have a licence, express or implied, and who enters, is a trespasser from the point of entry. Reasonable time to withdraw does not enter into the matter. Nor does the fact, if it be the fact, that the entrant believed, reasonably or otherwise, that he had a right to enter: see Fleming, J G Law of Torts, 9th ed Sydney, LBC Information Services, 1998, at 46.

Implied licence: the Family Court proceedings, the joint custody arrangement and certain papers: particular (a)

44 There is no indication in the reasons of the learned Magistrate that he relied on an implied licence to enter the premises in Walkaway that derived from the joint custody arrangement in respect of Amy.

45 There was evidence that both the appellant and Lynette had joint custody of Amy as a result of their Family Court proceedings, and that it was pursuant to the arrangements arising out of that joint custody that Amy was being returned to the appellant on the two occasions in question. See TS 6, TS 12, and TS 14 (examination-in-chief of Nowland); TS 18 (cross-examination of Nowland), TS 45 - TS 46 (examination-in-chief of Lynette).

46 It is true that at one point Nowland responded "That's correct" to the question, in his examination-in-chief, as follows:

"So if you had custody of Amy you'd drop them off at Mr Drage's and if he had custody of Amy he'd drop them back--?"

47 However, in cross-examination of Nowland on this point (TS 18) he stated he was not a party to any custody arrangement for Amy, and there was no indication of any reliance on any of this evidence by the learned Magistrate.

48 It seems to me that the evidence of the joint custody arrangements and their relation to the return of Amy on the two occasions in question was by way of factual background. It was not put forward, and not treated by counsel for the respondent or by the learned Magistrate, as forming a foundation for an implied licence to the appellant to come on to the premises in Walkaway on the two occasions in question.

49 There was also evidence, from Nowland and Lynette, that, on the August 2005 occasion, they understood, from Amy, that the appellant had some papers be picked up from him: see TS 15 (examination-in-chief of Nowland), and TS 29 - TS 31 (cross-examination); and TS 46 (examination-in-chief of Lynette). This evidence was of some significance to the learned Magistrate, as will become apparent below.

50 There is some indication, from that evidence, and from his Honour's reasons where he considers the matter (TS 111), that the papers related to a passport application for Amy, and in turn that this application was related to Family Court proceedings.

51 The learned Magistrate concludes from the evidence I have referred to that "they were actually told to stay to receive papers". This might seem to indicate his Honour had found an express licence for Nowland, Lynette and Amy to remain.

52 However, his Honour does not so state, and the evidence on which his Honour may have been relying, that of Nowland and Lynette referred to in this connection above, was not clear as to whether or not Amy was conveying a request that Lynette stay, and gave no indication of any intention as to Nowland. Nowland's evidence, when questioned on the matter, was that it was "a general comment" (cross-examination, TS 29). The appellant's evidence was that he had no recollection of any papers (cross-examination, TS 87 - TS 88, TS 91). The prosecution in its closing address does not appear to rely on the matter of the papers as founding an express licence to remain. Counsel for the respondent before me disclaimed any intention of relying on his Honour's finding here as one of an express licence.

53 I consider that I cannot conclude that his Honour here was indicating he had found an express licence for Nowland to remain to pick up the papers. His Honour's language that I have quoted does not appear to me to be clear on the point. Further, as I have previously indicated, the learned Magistrate did not consider the defence in Code, s 254, had been relied upon in connection with the assault of August 2005. Rather, his Honour was referring to the matter of the papers for the purpose of his conclusion that self-defence, in Code, s 248, was not raised on the evidence. As I have previously indicated, I return to that conclusion below, as it relates to the matters of cancellation of withdrawal of the implied licence, and the force used, which in my view is relevant to Code, s 254. For now, I note that his Honour, in connection with that use, was concerned only to conclude that he preferred the evidence the assault on August 2005 occurred following the handing of papers by the appellant into the car and after Nowland had received them.

Implied licence's withdrawal and its cancellation: particular (b)

54 It appears to have been common ground that the appellant had withdrawn any licence for Nowland to enter the premises in Walkaway when, as I have previously indicated, in September 2004 he had ordered Nowland, Lynette and Amy off the premises. On the applicable law as I have described it, it seems to me, on the way the case for the prosecution had been presented to the learned Magistrate, that, if there had been no cancellation of that withdrawal, there would be no basis for any conclusion that Nowland was not a trespasser on the December 2004 occasion or the August 2005 occasion. If so, it seems to me, on the applicable law as I have described it, there would be no requirement for Nowland to be given a reasonable time to withdraw before the appellant could use the force Code s 254 made it lawful to apply. That is because the effluxion of that time was not required before Nowland became a person who wrongfully remained.

55 I have also previously referred to the learned Magistrate's finding that the withdrawal had been cancelled as to Lynette and Amy, so as to permit the former to bring the latter to her father, and that Nowland, when he was involved in dropping Amy off, was not "under the impression he was still barred from going there" (TS 109).

56 However, it seems to me that the learned Magistrate erred in his approach to the question whether or not the withdrawal of the implied licence had been cancelled as to Nowland. As I have previously indicated, the subjective belief of the entrant, whether on reasonable grounds or otherwise, that he had a licence to enter, is not determinative.

57 However, the grounds for any belief by an entrant that he had a licence to enter may indicate that there was indeed a licence to enter, in this case, the implied licence whose cancellation had been withdrawn. It was put to me by counsel for the respondent that his Honour had in fact been concerned with the matter of the basis for Nowland's belief, and that basis represented a sufficient one for a finding that the withdrawal of the implied licence had been cancelled.

58 That basis was the fact that Nowland had been involved in Amy's return to her father, both between the September 2004 incident and the December 2004 occasion, and between the end of that period and the August 2005 occasion. That involvement was in the form of Nowland's being in the vehicle used for the purpose.

59 However, I am not convinced the learned Magistrate so approached the matter in relation to the December 2004 occasion. Further, his Honour did not, it seems to me, consider the matter in relation to the August 2005 occasion, taking account of the fact that, of course, there had previously been the use of force on the December 2004 occasion.

60 His Honour did, it seems to me, consider whether or not, notwithstanding the September 2004 incident, Nowland believed he could be involved in Amy's return to the premises in Walkaway. In doing so, his Honour considered both what basis Nowland may have had for such a belief, and whether or not any such basis was removed by certain evidence from Amy. That evidence was that she had communicated to Nowland her father's wish Nowland not come on to the premises in Walkaway.

"He didn't give Mr Noland any permission but I'm unable to find it demonstrated to any standard or even if there's any doubt that Mr Noland when he dropped off young Amy at the premises of Mr Drage was under the impression that he was still barred from going there. After all he had let Amy go back following September. After all, he let his wife go back following the expulsion in September. He hadn't communicated in person to Mr Noland that he wasn't to go back.

The daughter can remember telling Mr Noland at some time that the father didn't [want him to] go back but when asked at what time it was or was it prior to Christmas 2004 gave a three out of ten sliding scale answer as to whether it happened before that date or not, and I accept the evidence of both Lynette Drage and Michael Noland that at the time he came to drop Amy off at the premises of Mr Drage although it may well have been an unwise act he was not at any stage at that time told to leave - told not to come back on the premises."

62 However, in approaching the matter in that way, it seems to me his Honour did not concern himself with whether or not there was a basis for a reasonable doubt that the appellant had not cancelled the withdrawal of the implied licence, so that Nowland, on the December 2004 occasion, and on the August 2005 occasion, was wrongfully remaining on the premises in Walkaway. Had his Honour done so, it seems to me he would have addressed the matter of the basis for Nowland believing the appellant was aware that Nowland had been involved in Amy's return as I have indicated. As I read his Honour's reasons, in the passage quoted, he does not, in fact, expressly address the matter of whether or not had Nowland had any such belief. Further, counsel for the respondent was not able to direct me to any evidence from any witness that the appellant had been so aware, except of course on the December 2004 occasion and the August 2005 occasion. On both such occasions, the appellant had used force on Nowland.

63 There was evidence, from Nowland (re-examination, TS 38), that, while "mainly" Lynette's vehicle had been used to return Amy to the premises in Walkaway, at least in the returns during the summer "a person with normal vision would have been able to see who was in the vehicle". However, I was not directed to any evidence, and I could find none, that the appellant was present in a position to see the car and its occupants at the relevant times, although there was evidence from Lynette that she had seen the curtain open on a number of occasions (examination-in-chief, TS 50). I do not consider that evidence represents a strong foundation for the inference that the appellant must have cancelled his withdrawal of the implied licence as to Nowland.

64 Counsel for the respondent invited me to conclude that no other reasonable conclusion could be drawn from the evidence before his Honour than that the withdrawal of the implied licence had been cancelled. However, I am unable to agree. This of course is a matter on which the onus remained on the prosecution. It never shifted to the appellant.

65 In respect of the assault on the August 2005 occasion I have previously referred to the evidence that on that occasion Nowland and Lynette had understood that the appellant had some papers to be picked up. I have previously indicated that I do not conclude from that evidence, or the learned Magistrate's finding in relation to the matter, that his Honour had determined there was an express licence for Nowland to remain to pick up the papers. I return below, in relation to particular (d), to a contention of the appellant with respect to the matter of the papers.

66 Counsel for the respondent appeared to put to me that I should consider the evidence as to the papers as tending to support the conclusion that the appellant was not excluding Nowland from the premises in Walkaway. I have difficulty following this argument. It seems to me, for the reasons I gave in the earlier context, that the evidence at best is ambiguous on by whom the appellant meant the papers to be picked up, whether Lynette, or Nowland, or both. The learned Magistrate, as he approached that evidence, did not need to resolve the ambiguity.

67 I do not consider the evidence can be relied upon as counsel for the respondent would have me do.

68 I also note that there was evidence from Nowland and Lynette to which his Honour referred (at TS 110) as follows:

"As to whether the message - leaving a message through his 12-year old daughter to tell someone to leave is effective communication, it I don't think it is, and it's not been shown any degree that it was. In fact, both Michael Noland and Miss Drage say that it really depended on Mr Drage's mood as to whether it was all right to come and go or not."

69 Counsel for the respondent did not rely on this evidence in this context, and I consider that was appropriate, as it does not seem to me it supports the view that the withdrawal of the implied licence in September 2004 had been cancelled as to Nowland at the relevant times. Had that been his Honour's view of it, I would have expected him to examine what Nowland and Lynette understood as to the appellant's mood at each of those times. Further, the evidence does not it seems to me lend itself to identification in such time terms.

70 The evidence on which his Honour relied appears to be that from Nowland and Lynette. Nowland's evidence was that "things would sort of blow up and then go back to a normal pattern again for various reasons", apparently related to how matters had been progressing in the Family Court proceedings (examination-in-chief, TS 14, describing events around the December 2004 occasion; cross-examination, TS 19, TS 22, TS 23). Lynette's evidence was that "the thing with [the appellant] is he gets upset about something then he calms down" (cross-examination, TS 57). However, none of this evidence is specific as to the times at which any such mood might have pointed to a change in attitude as to Nowland coming on to the premises in Walkaway.

71 Nor it seems to me does the evidence readily lead to the conclusion that the appellant, when matters had gone back to a "normal pattern" or had calmed "down", was thereby indicating he had cancelled the withdrawal as to Nowland of any licence to him, express or implied, to come on to the premises in Walkaway.

72 Further, there was evidence that the appellant had taken a continuing dislike to Nowland which indicated an unwillingness to meet him. This was particularly in the form of the evidence of Lynette that the appellant had said to her, when she tried to get the appellant to meet Nowland, that if the appellant ever met him he would "hit him with a baseball bat" (re-examination, TS 60), a conversation Nowland overheard (examination-in-chief, TS 10 - TS 11). Lynette's evidence was also that the appellant "kept saying he didn't want to meet" Nowland (re-examination, TS 60).

73 This evidence would it seems to me make it difficult to draw any inference from the evidence as to the appellant's changes of mood that he had cancelled the withdrawal of any licence to Nowland to come on to the premises in Walkaway.

74 My conclusions on particular (a) make it unnecessary for me to go into the evidence to which the appellant drew my attention relating to certain allegations in the Family Court proceedings involving the appellant and Lynette: see cross-examination of the appellant, TS 77 - TS 78. I also do not need to explore the evidence to which the appellant also drew my attention relating to an occasion on which he testified he threatened to sue Nowland for trespass: see examination-in-chief of the appellant, TS 70. I should indicate, however, both matters of evidence would tend to indicate a background of very strained relations between the appellant and Nowland, pointing away from the likelihood of any withdrawal of the cancellation of any licence to Nowland.

The countermanding of any implied licence to enter and a reasonable opportunity to withdraw: particular (b)

75 It seems to me that, in view of my conclusion on the previous particular, the particular does not arise.

76 If it had been necessary to do so, I would have concluded, in respect of the December 2004 occasion, that there was ample evidence, from the appellant (cross-examination, TS 80, TS 81 and TS 83) as well as from Nowland (examination-in-chief, TS 4 and TS 10; cross-examination, TS 26 and TS 27), to support the learned Magistrate's conclusion (TS 109) that at the least Nowland had not been given a reasonable opportunity to withdraw before he was assaulted.

77 As to the August 2005 occasion, the learned Magistrate, as I have indicated, did not consider the defence in Code, s 254, had been put to him in respect of the assault then. The consequence of his approach is that the learned Magistrate did not clearly address the matter of a countermand. However, there was evidence from the appellant, to which my attention was drawn, in his cross-examination as follows, concerning what happened when he approached the car in which Nowland was sitting (TS 89):

"PROSECUTOR: You opened the car door? --- Yes.

Then what did you do? --- Told him that he wasn't supposed to be on my property because I had a bail order against me and that bail order -- "

78 Following an exchange by the appellant with the prosecutor and the learned Magistrate concerning the nature of the questions being put to him, and the evidence of Nowland and Lynette, there was the following evidence given (TS 90 - TS 91):

"But you opened the door? --- Yes.

PROSECUTOR: Then you hit Mr Noland? --- No. He raised his hand up to me just as though he was going to have a go at me and that's when I took a swing, but before that ever happened --

No. No, no. -- ? -- I had told him I had --

Hand on? --- -- a court order there stating that there was a bail order there stating that -- and I will state it that he wasn't supposed to go onto my property."

79 It was put to me by counsel for the respondent that I should infer from this evidence that the appellant had conceded he did not tell Nowland to leave the premises in Walkaway. I agree. However, it seems to me, in the context of prior dealings on the premises in Walkaway between the two men, that on the appellant's evidence he was informing Nowland his presence there was not acceptable. Further, it is not clear to me from this evidence that the appellant had not, in effect, provided Nowland a reasonable opportunity to withdraw in the circumstances as they presented themselves to the appellant.

80 At the same time, I also note, that the learned Magistrate did not accept this evidence of the appellant, but preferred that of Nowland and Lynette, that Nowland had been handed papers by the appellant, and as he placed them on the dash of the car was "punched without warning" (TS 111). I return to this finding below, which was of importance to the learned Magistrate in his application of the defence in Code, s 248, on self-defence, in relation to the assault on the August 2005 occasion.

The use of such force as was reasonably necessary for removal: particular (d)

81 On my conclusions thus far, this element is determinative of whether or not the appeal succeeds. That is to say the issue is whether or not the facts as found by the Magistrate or the evidence are such as to lead inevitably to a conviction because there was on the Magistrate's findings or the evidence proof beyond a reasonable doubt that the force used in each of the two assaults was not such as was reasonably necessary for the removal of Nowland.

82 In relation to the December 2004 occasion the learned Magistrate had, of course, applied the Code, s 254, defence, although he had erred in concluding that the defence was negatived because the appellant had not given Nowland a reasonable time to remove himself from the premises in Walkaway. However, the learned Magistrate also said this (TS 110):

"Mr Drage relies through his counsel on section 254 of the Criminal Code as a defence to assault saying, okay, there might have been an assault and Mr Drage's view is that he's pushed him against the car in order to push him in his car and then when it was complained about by Mr Noland who said, 'That's an assault', he said, 'This is two more assaults' or something of that nature', hitting him twice across the face with a fist.

Now, the force that a person can use to remove someone is spelt out in section 254. It is lawful for a person who is in peaceable possession of any place to use such force as is reasonably necessary to remove a person who wrongfully remains in the place.

The slapping twice in response to the statement, 'This is an assault' doesn't assist his removal of the complainant, Mr Noland, whatsoever. It is extraneous and unnecessary force, and even on is [sic his] version of events which I don't prefer on this occasion to the version given by Lynette Drage and Grant Noland, I accept their version of events that he was simply hit without warning."

83 There was some challenge before me to the findings of fact the learned Magistrate made in the respects just quoted. However, I do not consider those challenges disturb those findings.

84 I note that the appellant contended that, while he had struck the appellant twice on the face, Lynette had testified she could not recall whether the blows were an "open palm" or a "closed fist" (cross-examination, TS 60). The appellant's evidence, he said, was that the blow the appellant used was in each case a "slap" (examination-in-chief, TS 73) in the form of a "bitch slap" (cross-examination, TS 81, where he said the transcript rendering of "big slap" was an error). Nowland's evidence was that he was hit with a "clenched fist" as well as the "heel of his hand" (examination-in-chief, TS 5). Although in cross-examination he appeared to qualify the evidence of the first blow being with a clenched fist (TS 27), he maintained that he had been hit with "further punches", in a "non-stop onslaught" (TS 28).

85 I conclude from this body of evidence that there is ample evidence to support the finding of the learned Magistrate (who, it seems to me, took into account specifically the appellant's evidence as to slaps), on the evidence he accepted, that Nowland was punched repeatedly.

86 I note that the appellant put to me that photographs taken by or for the police of the injuries of the effects of the blows Nowland suffered had not been put into evidence. However, such evidence was not, on the evidence the learned Magistrate accepted, required to arrive at his findings.

87 On the findings of the learned Magistrate, it seems clear to me he determined, both that the force used and relied upon by the prosecution as constituting the assault charged was not used for the purpose of removal, and that that force was not "reasonably necessary" for any such purpose. See Prior, appeal (supra), per Templeman J at [153]; and per Murray J, at [10]. Unlike that case, the learned Magistrate made clear findings as to which evidence he prefers in relation to the matters in issue: compare Prior, appeal, per Steytler J, dissenting, at [24].

88 On that basis, I am of the view that the facts as found by the learned Magistrate lead inevitably to a conviction in respect of the conviction on the charge relating to the December 2004 occasion.

89 In relation to the August 2005 occasion, I return to his Honour's consideration of the evidence as to the papers that Nowland and Lynette, on their evidence, understood the appellant wished to have picked up then.

"Apparently the court had told Mr Drage that he had to fill out this paper. It was served on them. They remember such a thing. Now, I accept also on this occasion Mr Noland's version of events which is corroborated neatly by Miss Drage's. They went there, they drove the car there. The only difficulty is that Miss Drage isn't sure whether the door was opened or he approached through the window. Now, that's not a big thing and under cross-examination she fairly admitted she wasn't sure which one of the two it was. That doesn't cast any doubt on what occurred.

Mr Drage gives a different version. He says he goes to the window, he crouches down. There's a sudden movement for no reason by Mr Noland and he feels threatened so he punches him through the door as a necessary means of self defence.

Now, when self defence has been raised, of course, it's up to the prosecution to negative it. I don't accept that it's been raised because he has grabbed the papers that have been proffered him. So there is no threat of assault or even any room as far as I'm concerned for an honest mistake of fact that there was a threat of assault because he's thrust papers through the window and all that Mr Noland has done is accept the papers that were handed to him.

If Mr Drage says he can't remember the papers, there's a movement for no reason, I think he's wrong and I find as a fact that he handed papers through the window as- - that he'd opened the door, that they were put in the hand of Mr Noland and then as Mr Noland placed them on the dash he was punched without warning.

On this occasion, of course, it's not claimed that this occurred through a need to defend his property against trespassers but Mr Drage obviously feels strongly about that a man's home is his castle and he even said to the sergeant he'd throw him off if he asked him to leave and, of course, that is his right, but section 254 wasn't relied on. What was a mixture of section 248 which I find hasn't been raised. It hasn't been raised because I accept the evidence of Michael Noland and Lynette Drage. They weren't moved in cross-examination. They were there for a very long time being cross-examined vigorously. Both were unshaken.

Mr Noland made confessions or concessions against his interest on occasion. He was quite careful to get his memory correct and when he couldn't remember something he would say so. Mr Drage on the other hand, didn't impress me as a witness of the truth. He was argumentative and I think gave every indication of being the angry person that his wife and Mr Noland described him as.

He didn't know if he connected or not but I accept as a fact that he did. The action described by Lynette Drage was the effect upon Michael Noland, was a similar demonstration as been given earlier in relation to the previous assault; a striking - -a movement back away from the blow.

Mr Drage appears careless as to whether he struck him or not so that impression corroborates Mr Noland's version that he was struck on the lip by the blow and that is that the blow through the door.

Mr Drage's version that he was anticipating an assault from a person who is sitting in a car in the smallish car and seat, the degree of force anticipated by him again I reject, but even if it was correct, even if he did for a fleeting moment think that the person who didn't assault him last time or make any attempt to defend himself even on this occasion was assaulting him, then to simply punch him when he was in that defenceless position, I think it's more likely as a result of anger than a genuine attempt to defend himself from an attack especially when the movement didn't come to fruition but, in any event, I prefer the evidence of Mr Noland and Lynette Drage and I prefer it beyond reasonable doubt. I'm not left in any reasonable doubt at the end of all this as to what occurred.

The cross-examining counsel did his very best but really was unable to shift them away from their evidence to any small degree."

91 The learned Magistrate, as that passage indicates, had not addressed the matter of the relevance of this analysis to the defence in Code, s 254. He had, however, treated at some length the application of the defence in Code, s 248, which he found "hasn't been raised". Although that language might suggest he considered there was insufficient evidence before him to require the defence to be negatived beyond a reasonable doubt before a finding of guilt beyond a reasonable doubt on the present assault could be returned, it is clear to me the learned Magistrate's treatment indicated he meant that the defence on all of the evidence had been so negatived. That treatment would also, it seems to me, indicate, on my earlier conclusions as to the other elements of the defence in Code, s 254, that that defence also required to be negatived beyond a reasonable doubt before a finding of guilty beyond a reasonable doubt on the present assault charge could be returned.

92 However, it seems to me that the learned Magistrate's findings in the passage I have quoted in relation to the August 2005 occasion lead inevitably to a conviction in respect of the conviction on the charge relating to that occasion. This is notwithstanding that the learned Magistrate did not consider those findings in relation to the defence in Code, s 254.

93 I did not understand the appellant to challenge the relevant findings of the learned Magistrate, except in the respects I now consider. I do not consider the challenge to have been successfully maintained.

94 The first such respect was that the appellant appeared to say that Nowland's evidence as to how he moved when the papers he testified were presented to him was not consistent. However, the evidence to which I was referred (examination-in-chief, TS 16; and cross-examination, TS 32 - TS 33) appears to me to be consistent, and to be as described by the learned Magistrate in his findings. Nowland's evidence was that he moved to receive the papers, and, as he leaned to put them elsewhere, he was struck.

95 The second such respect had to do with the evidence, relied upon by the prosecution in its closing (TS 106), in the form of the appellant's demonstration in cross-examination of how he had struck Nowland, in terms of what the prosecutor described as a "very swift movement", from which in successive demonstrations, the prosecutor said, he "backtracked", making the movements "slower and slower". I was not able to find from the transcript a narrative describing the relevant demonstrations, although I infer that at least one demonstration occurred during the cross-examination at about TS 92. In any event, it seems to me the learned Magistrate was in a position I did not occupy to understand that evidence, and he indicated, as I have said, that he preferred the evidence of Nowland and Lynette in relation to August 2005 occasion.

96 The third such respect put to me by the appellant was that the papers to which the learned Magistrate referred were never produced into evidence, and Amy had given no evidence as to those papers. However, I do not consider, on the evidence the learned Magistrate accepted, that evidence of either sort was required for him to arrive at the findings he did. Further, I note that Amy was not asked any questions as to those papers, in examination-in-chief, cross-examination or re-examination (TS 95 - TS 101).

97 The third such respect apparently put to me by the appellant was to the extent the appellant appeared to say that photographs taken by or for the police of the injuries the effects of the blows Nowland suffered on the August 2005 occasion had not been put into evidence. Such evidence was not, on the evidence the learned Magistrate accepted, required for him to reach his findings, however.

98 However, before at this point I leave the matter of any challenge to the findings of the learned Magistrate, I should indicate that I return below to one item of evidence that might be seen to go to affect the view I should take of those findings. That is evidence which I reviewed in the context of particular (c) above.

99 I proceed now to explain my conclusions drawn from the findings of the learned Magistrate as I have set them out.

100 In my view, on the relevant facts as he found them "beyond a reasonable doubt", based upon the evidence of Nowland and Lynetter which he preferred to that of the appellant, the appellant's application of force to Nowland was not "reasonably necessary to remove [the latter]", in the language used by Code, s 254(2)(b). The learned Magistrate had clearly found that Nowland had offered no threat or other resistance to the appellant at the time the appellant had hit him. Nor on the facts as the learned Magistrate found them was there a basis for "an honest and reasonable, but mistaken, belief" by the appellant that such a threat or other resistance to the appellant was being offered, so as to raise a question as to the application of Code, s 24 (which employs the quoted language), in conjunction with s 254.

101 I should note, however, the learned Magistrate's reference to the appellant's evidence that there was a sudden movement in the car "for no reason", which was the threat to which the appellant said he reacted. It will be recalled, from my consideration of the particular (c), that there was evidence from the appellant that he had so reacted just after saying to Nowland he was not supposed to be at the premises in Walkaway. I do not consider that this was evidence the learned Magistrate had failed to consider in relation to the findings I have identified as leading inevitably to the conviction I have referred to. That is because the learned Magistrate's findings were based on his clear preference for the evidence of Nowland and Lynette as to the relevant events, including whether there was a sudden movement by Nowland which the appellant could reasonably have seen as a threat or other resistance and to which the appellant had reacted, or instead there was a punching "without warning" as Nowland placed papers he had received from the appellant on the dash board of the car. I was not taken to any basis for the view that that preference was not a conclusion at which the learned Magistrate could properly arrive other than the challenge from the appellant with which I have previously dealt.

103 I will hear from the parties as to the orders to be made in that event.