Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Evaluation of witnesses - Self­defence - Mistake of fact - Turns on own facts

Criminal Code 1913 (WA), s 24, s 248 (this section now repealed)

Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285

Marwey v The Queen [1977] HCA 68; (1977) 138 CLR 630

R v Muratovic [1967] Qd R 15

Rogers v The State of Western Australia [2008] WASCA 201

Stanik v The Queen [2001] WASCA 333; (2001) 125 A Crim R 372

Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657

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

1 ALLANSON J: The appellant is a member of the police service. On the evening of 10 July 2008 he was with two companions at a hotel, when he became involved in an argument with a crowd controller who wanted to exclude one of the appellant's companions from the premises. The prosecution alleged that the appellant pushed the crowd controller in the chest, and that the push was unlawful.

2 The appellant was charged with common assault pursuant to s 313(1)(b) of the Criminal Code 1913 (WA). He was convicted after trial. He now seeks leave to appeal on three grounds:

(1) The learned magistrate erred by rejecting the evidence of the witnesses Kinsella and O'Connor because their evidence had not been 'tested' by cross-examination.

(2) The learned magistrate erred in failing to properly consider the defence of self-defence.

(3) The combination of errors in grounds 1 and 2 led to a substantial miscarriage of justice.

3 The application for leave was heard together with the appeal.

4 The events occurred at the Paddington Ale House, where the appellant was drinking with two companions - Mr O'Connor and Mr Kinsella. The appellant was off-duty and wearing civilian clothes. During the course of the evening, Mr O'Connor was told to leave the licensed premises and was escorted outside by the complainant, Mr Roberts. Mr Roberts was variously referred to in evidence as a crowd controller, a doorman, and a bouncer. The Security and Related Activities (Control) Act 1996 (WA) uses the term 'crowd controller' and I will follow the Act.

5 The appellant and Mr Kinsella also went outside and spoke to Mr Roberts on a landing just outside an entrance to the premises.

6 The prosecution alleged, in opening, that the appellant became frustrated and angry because Mr Roberts refused his request for the men to be allowed back into the hotel. The appellant pushed Mr Roberts in the chest and attempted to grab him, forcing him backwards.

7 Counsel for the appellant made a brief opening statement. She said that the appellant denied that he had pushed Mr Roberts as alleged. Further, the appellant contended that if he did make contact with Mr Roberts, it was in response to an attempt by Mr Roberts to assault him; alternatively, that the actions of Mr Roberts were such as to lead the appellant to honestly and reasonably believe that Mr Roberts was about to assault him and he acted reasonably on that belief.

8 Apart from the appellant and Mr Roberts, there were three eye-witnesses to the events resulting in the charge: another crowd controller, Mr McDowell, and the appellant's two companions, Mr O'Connor and Mr Kinsella. The incident was recorded on a security camera.

9 The prosecution called other witnesses, none of whom saw the alleged assault. It is not necessary to deal with their evidence for present purposes.

10 The matter proceeded to trial for three days, on 6 and 7 July 2009, and 30 September 2009. The magistrate heard submissions on 6 November 2009, and delivered his decision, with oral reasons, on 1 December 2009.

11 The incidents inside the hotel leading to the removal of Mr O'Connor, and those on the landing were all filmed by security cameras. The images from those cameras, and in particular from the camera on the landing, are an important part of the evidence, and were crucial to the magistrate's decision. The evidence has its limitations, which the magistrate expressly recognised. In particular, rather than a continuous moving picture, the film produced by the security cameras is a series of stills or frames. Generally there is a half second delay between each frame, but on occasions there is a one second delay. It is possible for a very quick and sudden movement not to be shown at all. The magistrate also referred to occasions when it was difficult to be sure what could be seen, and when interpretations of the images could differ. The grounds of appeal do not challenge his approach to the evidence from the security cameras, or his findings about what that footage shows.

12 Mr Roberts testified that when he removed Mr O'Connor from the licensed premises for his conduct in the bar area, he was approached by the appellant who questioned him about what he was doing. The discussion started inside the premises and continued on the landing. Mr O'Connor and Mr Kinsella were also present, and Mr McDowell came up onto the landing shortly afterwards.

13 The appellant asked Mr Roberts for his crowd controller's identification and Mr Roberts then noticed that he did not have his identification on the lanyard around his neck. He then showed the appellant an expired licence from his wallet - he says as a sign of good faith. The sequence of events from then, as related by Mr Roberts, was that the appellant looked at the licence, and Mr Roberts then grabbed it back, put it in his wallet and went to put the wallet in his pocket. That is when the appellant 'went to grab me by the throat'. Mr Roberts tried to block the appellant and parried his hand downwards, so that the contact ended up as a push to his chest area.

14 The defence cross-examined at considerable length on the sequence of events. It was put to Mr Roberts that he did not get his licence back, but tried to grab it away from the appellant, and at the same time put his left arm out towards the appellant's shoulder and grabbed him. Mr Roberts maintained that he got back his crowd controller's licence. He agreed that he put his arm out 'trying to create a space' because the appellant had come at him, and he was against the wall with nowhere to go. It was the appellant who moved towards him and he responded.

15 Mr McDowell also gave evidence about the events on the landing. In examination-in-chief, he said that after Mr Roberts had handed the appellant his licence, the appellant handed it back. The appellant then pulled a wallet from his back pocket and showed Mr Roberts his police badge. The appellant 'lunged' at Mr Roberts and went to grab him in the chest area. Mr Roberts was pushed backwards.

16 Mr McDowell was also cross-examined at length about his recollection, and in particular the sequence of events. In particular the defence put to him, based on a series of frames from the security camera, that the appellant put his arm out and moved forward towards Mr Roberts only after Mr Roberts put his left arm out towards the appellant.

The evidence of Mr O'Connor and Mr Kinsella

17 The prosecution called Mr O'Connor and Mr Kinsella, and they gave their evidence-in-chief in answer to questions from the prosecutor. They were then were further asked questions on behalf of the appellant.

18 In his evidence-in-chief, Mr O'Connor said that when they were on the landing, the appellant asked for, and was given, Mr Roberts's licence. He was holding it at chest height. Mr Roberts then attempted to grab the licence back, and 'as a retaliation to that' the appellant fended him off with his hand. Mr O'Connor did not see whether there was any contact but after that there was a scuffle.

19 Mr Kinsella, in examination-in-chief, said that when they were on the landing, and were just about to leave, the appellant noticed that Mr Roberts was not wearing any identification and asked him about it. Mr Roberts produced the licence from his wallet, and the appellant then told him that it was out of date. The appellant identified himself as a police officer. Mr Roberts then 'made a grab' to get his licence back, and contacted the appellant up around the shoulder as he went through. The appellant then 'sort of went forward to fend him off'.

20 The appellant gave evidence. He said that when he was on the landing he asked Mr Roberts for his crowd controller's licence, which Mr Roberts handed to him. Mr Roberts asked for it back and the appellant refused. Mr Roberts then attempted to grab the licence out of the appellant's hand using his right hand. The appellant moved his right hand and his shoulder backwards to prevent Mr Roberts from getting the licence. Mr Roberts' left arm came up towards the appellant's right shoulder or chest area as Mr Roberts attempted to grab him. The appellant says that as well as moving his right arm backwards, he moved forward towards Roberts, and put up his left arm, outstretched with his palm facing up in an open position. He described it as 'an instinctive reaction to his reaching out to me'.

21 The appellant denied attempting to grab Mr Roberts by the throat and denied touching him at all. He said his arm and hand were put up in a defensive motion to stop Mr Roberts from coming at him, and that he believed Mr Roberts was going to come at him.

22 The appellant was cross-examined. The prosecution put its case that the appellant was angry and frustrated with Mr Roberts for ignoring him and, in particular, that it was the appellant who moved first. The appellant maintained that Mr Roberts moved towards him first. He also said:

It all happened at the same time and it was just an instinctive reaction, like move, move, move. It was all within seconds.

23 The appellant's comment that it was all within seconds is literally true - the central events occurred within about 5 seconds.

24 The magistrate reserved his decision, and later delivered oral reasons. The reasons are, in effect, in four parts.

25 First, the magistrate outlined the opening statements of both prosecution and defence. In particular, he referred to the defence case that the appellant acted under a belief that Mr Roberts was making a move which made it necessary to defend himself, or, if not, that he honestly and reasonably but mistakenly believed that to be the position. The magistrate referred to both s 24 and s 248 of the Criminal Code.

26 Second, he summarised the evidence of each of the witnesses, and the evidence from the security cameras. He said that he had watched the security camera footage many times.

27 Third, the magistrate commented on the evidence of each of the witnesses, making findings about credibility and reliability. In particular, the magistrate compared testimony with what was shown by the cameras. There are three particular findings that are important to the grounds of appeal.

28 Speaking of Mr O'Connor's testimony, the magistrate said that as he was called by the prosecution, he was not cross-examined by the prosecutor. While he was cross-examined by the appellant's counsel, his evidence had not been tested:

Basically the cross-examination in most cases consisted of defence counsel putting a number of propositions to him with which he agreed obviously.

29 The magistrate referred to the evidence that Mr O'Connor had been drinking for some hours. Importantly, he referred to instances, including instances where he agreed with a proposition put by defence counsel, where Mr O'Connor's testimony was contradicted by the evidence from the cameras. Mr O'Connor's evidence was also described as vague, and he was not regarded as a convincing witness.

30 In relation to Mr Kinsella, the magistrate referred to the evidence that he had been drinking and to his friendship with the appellant. He referred to occasions when Mr Kinsella's evidence in response to questions in cross-examination was inconsistent with the security footage.

31 In considering the evidence of the appellant, the magistrate compared that also with the evidence from the security camera. In particular, he referred to the appellant's evidence that 'he had his arm up but he made no contact with Mr Roberts and he hadn't touched him' before Mr Roberts hit him. The magistrate said:

That evidence, in my view, is very difficult to accept when the footage shows [the appellant] is moving forward with his arm out over the course of three separate frames, and during those three separate frames, the complainant Mr Roberts is moving backwards, not forwards.

32 The fourth part of the reasons was the findings. The magistrate immediately identified what he regarded as the key factual issue - whether the appellant had returned Mr Roberts' licence to him, or whether he still had it in his hand and Mr Roberts attempted to snatch it back. The footage from the cameras was not absolutely clear, but the magistrate accepted the evidence of Mr Roberts and Mr McDowell. This involved a rejection of the appellant's case that he had responded when Mr Roberts made a move towards him to recover the licence.

33 Ground 1 asserts that the magistrate erred by rejecting the evidence of the witnesses Kinsella and O'Connor because their evidence had not been 'tested' by cross-examination. There are four particulars to the ground. The substance of the ground is in particular 4, which alleges that the magistrate 'erred in failing to place any proper weight in the evidence of the witnesses solely by virtue of the fact that they were called by the prosecution who was unable to cross-examine them'.

34 The witnesses, Mr O'Connor and Mr Kinsella, were witnesses to the events leading to the charge. In calling those witnesses, the prosecutor at trial acted in accordance with the principles stated by Dawson J in Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 674 - 675:

All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief ... No doubt all of these observations are merely aspects of the general obligation which is imposed upon a Crown Prosecutor to act fairly in the discharge of the function which he performs in a criminal trail.

35 See also Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 [11]. I assume that the same general duties fall on the prosecution in summary proceedings.

36 In assessing the evidence of Mr O'Connor and Mr Kinsella, the magistrate said, correctly, that both men had been drinking for several hours. Specifically in relation to Mr O'Connor, he also concluded that he was vague and not a convincing witness, and put very little weight on what he said. The magistrate commented that neither witness had his evidence tested by cross-examination.

37 Later, in making his findings, the magistrate said regarding the evidence of Mr O'Connor and Mr Kinsella:

Their evidence, as I have already said, has never really been tested in this case - not tested properly - and their evidence in my view in many respects does not match up with what is obvious to me from the CCTV footage.

38 The appellant submits that the magistrate was not entitled to discount the evidence of Mr O'Connor and Mr Kinsella because (or primarily because) they were prosecution witnesses. He was still required to properly evaluate their evidence, and, even if he preferred the evidence of other witnesses, to determine whether their evidence was capable of raising a reasonable doubt as to the guilt of the appellant.

39 The appellant's proposition is correct. But in my opinion, the appellant has not shown that the magistrate erred in his treatment of the evidence of the two witnesses.

40 First, the magistrate's statement that the evidence had not been tested was true. It was not a ground to reject the evidence, but equally, the magistrate was not obliged to accept it just because it had not been challenged.

41 Second, the magistrate's approach to the evidence generally, including that of Mr O'Connor and Mr Kinsella, was to compare it with other evidence. Where possible, he tested it against the images from the security cameras and against other evidence which he accepted. In considering the evidence of these two witnesses, he referred to occasions where propositions put in cross-examination, and agreed to by the witness, were contradicted by other evidence, in particular, the footage from the cameras.

42 On the key issue, whether the appellant was still in possession of Mr Roberts' licence at the time the assault occurred, the magistrate accepted the evidence of Mr Roberts and Mr McDowell. He was entitled to accept that evidence. It was inconsistent with the evidence of Mr O'Connor and Mr Kinsella.

43 In my opinion, the magistrate did not err in his approach to evaluating the evidence of the two witnesses. I would dismiss ground 1.

44 Ground 2 asserts that the magistrate erred in failing to properly consider the defence of self-defence. There are three particulars, the substance of which is that the magistrate erred in law in excluding self-defence by wrongly finding that it is not available when an accused makes the first move.

45 At the time of the events which led to the charge, s 248 of the Criminal Code stated:

When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

46 An accused can be excused under s 248 even if he makes the first move. The question is whether an accused believed on reasonable grounds that it was necessary in self defence to do what he did. If he had that belief, and there were reasonable grounds for it, or a reasonable doubt about the matter, he is entitled to be found not guilty: Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645, 661. Further, a bodily act or gesture comprising a threat to apply force to the person of the appellant is an assault (Criminal Code s 222), and an accused is entitled to defend himself against an assault in the form of a threatened attack, if necessary by a pre-emptive strike: Stanik v The Queen [2001] WASCA 333; (2001) 125 A Crim R 372; Rogers v The State of Western Australia [2008] WASCA 201 [30].

47 An accused may also have an honest and reasonable but mistaken belief that relates either to the existence of an assault upon him or to the degree of force that is reasonably necessary to meet that threat, or both: Rogers v State of Western Australia [25] - [26]; Marwey v The Queen [1977] HCA 68; (1977) 138 CLR 630, 637; R v Muratovic [1967] Qd R 15, 19. An accused who acts reasonably on such a belief, is also entitled to be acquitted.

48 In ground 2, the appellant submits that comments made by the magistrate regarding self-defence are inconsistent with these principles.

49 The appellant refers to two particular comments. First, the magistrate referred to whether Mr Roberts tried to snatch his expired licence back from the appellant while the appellant was still holding it. He accepted the evidence of Mr Roberts and Mr McDowell that Mr Roberts had already recovered the expired licence and put it back in his wallet, or was in the process of putting it back, when the appellant assaulted him. The magistrate continued:

If I'm satisfied of that beyond a reasonable doubt, which I am, then really the question of self-defence does not arise because my finding is that Mr Roberts did not make a move to snatch back his ID because he already had it back and it follows from that - and I do find that the first move was made by the [appellant].

50 Later, the magistrate returned to self-defence and found that he was satisfied beyond reasonable doubt that the appellant's acts were not done in self-defence. The magistrate said:

In my view, the footage shows quite clearly that Mr Roberts had done nothing that was aggressive or confrontational at that stage. There was no assault, and I find there was no assault and there was no move by Mr Roberts to the accused, so in those circumstances, self-defence under section 248 does not arise in circumstances where it's the accused who makes the first move.

51 If the magistrate intended to state a general proposition that self-defence does not arise when the accused makes the first move, it is wrong in law. Having regard to the way that the matter had been contested, the magistrate's comment was not an error if related solely to his findings on the particular facts before him. The question on appeal is whether the magistrate was purporting to make a general statement.

52 First, the statements appear in that part of the reasons where the magistrate was stating his findings. The reasons contain no general discussion of the law, but are directed entirely to the facts to be determined.

53 The sequence of who moved first, and why, had been contested on the evidence. The appellant's case was that he raised his arm because Mr Roberts moved at him to get back his licence. In that context, the magistrate identified whether the appellant had returned the expired licence to Mr Roberts, or whether Mr Roberts tried to snatch it from the appellant's hand, as the 'key issue' in the trial. If Mr Roberts had already recovered the licence, the movement that the appellant says Mr Roberts made towards him, to snatch it back, was not made. The first of the magistrate's comments quoted above was, in my opinion, nothing more than a reference to those facts.

54 The second statement was also, expressly, a reference to the particular facts found. The statement, that s 248 'does not arise in circumstances where it's the accused who makes the first move', is confined to the circumstances where (as the magistrate found) Mr Roberts had done nothing aggressive or confrontational, and 'there was no assault and there was no move by Mr Roberts to the accused'.

55 Further, the magistrate was clearly aware that s 248 may apply when it would be reasonable for the appellant to believe he was about to be assaulted. He referred to the appellant's counsel opening the case on that basis. In making his findings, he said that, even if Mr Roberts had attempted to snatch back his identification, the appellant would not be able to rely on s 248 because that would not be an unlawful assault by Mr Roberts, and it would not be reasonable for the appellant to believe he was about to be assaulted. This is the only occasion in the course of the findings when the magistrate adverts to whether the appellant believed, reasonably or otherwise, that he needed to defend himself. It does, however, show that he was aware that the appellant would not be liable if he reasonably held that belief.

56 Reading the reasons as a whole, I am satisfied that the magistrate was making a finding on the particular facts before him, and did not err in the manner alleged in ground 2. I would dismiss that ground.

57 Ground 3 only arises if the appellant establishes error on each of the other grounds. Having regard to my conclusion on those grounds, leave should not be granted in relation to ground 3.

58 For these reasons, I would grant leave on grounds 1 and 2, but dismiss the appeal.