Supreme Court of WA|2011-08-03|Before: Edelman J, Magistrate P

FRANCIS -v- TODD [2011] WASC 185 (3 August 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : FRANCIS -v- TODD [2011] WASC 185

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Unlawful wounding - Obligation to give reasons for decision which are sufficient in the circumstances of the case - Section 31 of Magistrates Court Act 2004 - Operation of the proviso

Criminal law - Self-defence - Subjective element in the test for selfdefence that the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be - Characterisation of 'harmful act' in determining whether the harmful act is done in self-defence

Criminal law - Good character evidence - Whether discretion should have been exercised to consider, and refer to, evidence of good character

Criminal Code (WA), s 23A, s 248(1), s 248(2), s 248(4), s 301(1)

AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

Bennett v Carruthers [2010] WASCA 131

Duffy v The Queen [1981] WAR 72

Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1

Pallot v Harrison (Unreported, WASC, Library No 950261, 12 May 1995)

R v Falealili [1996] 3 NZLR 664

Scolaro v Shephard [No 2] [2010] WASC 271

Tran v Clayton [2003] WASCA 318

Wainohu v New South Wales [2011] HCA 24

1 This is an appeal from conviction for unlawful wounding. The grounds of appeal concern the obligation to give reasons for decision which are sufficient in all the circumstances; the elements of self-defence; and the role of good character.

2 The appellant was charged, pursuant to s 301(1) of the Criminal Code (WA), with unlawfully wounding the complainant on 19 September 2009. At trial, the appellant formally admitted that he committed an act which wounded the complainant on 19 September 2009. There was no dispute that the complainant received a substantial laceration to his nose. But the appellant denied that the wounding was unlawful, relying upon the defences of unwilled act (Criminal Code, s 23A) and self-defence (Criminal Code, s 248). After a three day trial which concluded on 2 February 2011, the learned magistrate requested written submissions, explaining that the matter was not going to be a simple case (ts 106, 2 February 2011). On 22 March 2011, his Honour delivered his reasons for decision. The appellant was convicted of unlawful wounding.

3 The following facts were set out by the learned magistrate in the section of his reasons summarising the facts. Later in this judgment I will refer to some of these facts in more detail, including the discussion of them at other points in the learned magistrate's decision.

4 On 19 September 2009, the complainant, Mr Robert Maisey, and his brothers, Mr Trevor Maisey and Mr Scatihard, were at the Rosemount Hotel. The complainant purchased a drink and placed it on the bench adjacent to where he was standing with his brothers.

5 The appellant was also at the Rosemount Hotel with his friends, Mr Watson and Mr McKay. The appellant sat down with a friend close to the complainant's drink. The appellant then picked up the complainant's drink and started to drink it. When the complainant noticed this he confronted the appellant and an angry exchange occurred. The complainant punched the appellant in the face and returned to his brothers. I interpolate here that the CCTV footage of that punch suggests that it was forceful; the appellant is sent sprawling backwards (the complainant described the punch as a 'medium punch': ts 34, 31 January 2011).

6 The complainant then returned to his brothers (who were nearby), but the verbal exchange between the appellant and the complainant continued. The complainant then turned back to where the appellant was seated and 'head butted' the appellant in the face. On the CCTV the appellant appears stunned by the head butt. The appellant followed a friend away from the location of the complainant, to the bar. The complainant returned to his brothers.

7 The appellant massaged his face and, while speaking with his friends, he stood in a direction facing the complainant for seven minutes. Friends of the appellant then approached the complainant and his brothers. There was discussion about the incident that had transpired between the complainant and the appellant; the complainant became very demonstrative.

8 The appellant then walked slowly over to the group in a manner which appeared calm. His friends had surrounded the complainant and the complainant's brothers. The appellant joined his friends. He was standing behind the complainant.

9 The complainant felt a tap on his shoulder from behind. Although the learned magistrate made no finding in relation to the source of this tap, it became common ground at the trial that the tap probably came from a third party, not from the appellant (ts 42, 31 January 2011), although when the complainant turned around he thought it was the appellant who had tapped him (ts 44, 31 January 2011).

10 After being tapped on the shoulder, the complainant turned around ninety degrees to face the appellant. The complainant appeared to speak out to the appellant briefly. The complainant had his hands in front of him with his palms out. It was not an aggressive stance. The appellant then sharply raised his right hand which was holding a glass and smashed it into the complainant's face. The complainant had reached out with his left hand towards the glass but was unable to intercept the blow. The appellant's body prevented the CCTV from showing what the complainant's right hand was doing but there was no act of aggression from the rest of the complainant's body that suggested that the complainant was about to strike the appellant with his right hand. A brawl then ensued and the appellant was dragged away.

11 The complainant was charged with assault. He pleaded guilty and was fined. As mentioned above, the appellant was convicted, after trial, of unlawfully wounding the complainant.

12 The appellant appeals from conviction on the following grounds:

Ground 1

The learned Magistrate erred in law in failing to consider all the evidence and give adequate reasons for his decision:

Particulars

the learned Magistrate did not make proper and necessary findings of fact in respect of the defence witnesses, Watson and McKay;
the learned Magistrate failed to give any reasons for discounting them;
the learned Magistrate failed to consider the evidence of the earlier assaults on the appellant.

Ground 2

The learned Magistrate erred in law in failing to determine whether the prosecution had proved beyond reasonable doubt that the appellant's 'harmful act' was not a reasonable response in the circumstances as the appellant believed them to be.

Particulars

The learned Magistrate found that the appellant's act 'could not be said to be a reasonable response in the circumstances.'
In reaching that conclusion the learned Magistrate did not expressly, or impliedly, determine whether the appellant's act was a reasonable response in the circumstances as the appellant believed them to be.

Ground 3

The learned Magistrate erred in law and fact in deciding that the prosecution had proved beyond reasonable doubt that the appellant's 'harmful act' was not a reasonable response by characterising the appellant's 'harmful act', for the purposes of s248(1) of the Criminal Code, as the act of 'smashing the glass into the complainant's face.'

Particulars

The relevant 'harmful act' for the purposes of s248(l) was the appellant's act of punching the complainant knowing that he had a glass in his hand, particularly having regard to the following express findings of fact:

(i) '1 am satisfied beyond reasonable doubt that as a matter of fact the accused punched the complainant with a glass in his hand, that he had knowledge that the glass was in his hand when he threw the punch and it was a willed act to do so.'

(ii) 'I am satisfied beyond reasonable doubt that as a matter of fact the accused was not acting in self defence when he punched the complainant in the fact with his hand holding a glass.' (emphasis in original)

Ground 4

The learned Magistrate erred in law in failing to exercise his discretion to take into account evidence of the appellant's good character in assessing whether the prosecution had proved that the appellant was guilty of the offence charged.

Ground 1: adequacy of reasons in relation to s 248(4)(c)

13 Generally, there is a common law duty to give reasons for decision which are sufficient in the circumstances of the case. The duty is independent of the question of whether the decision maker errs in law or in fact, although there can sometimes be a fine line between insufficient reasons, on the one hand, and errors of law or fact on the other: AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 [84].

14 The common law duty to give sufficient reasons for decision falls within the broad ground for appellate review based on 'miscarriage of justice': Criminal Appeals Act 2004 (WA) s 8(1)(b). The duty to give sufficient reasons is an incident of judicial power; it exposes decisions to scrutiny, it promotes general acceptability of judicial decisions, and it is consistent with democratic institutional responsibility to the public: Wainohu v New South Wales [2011] HCA 24 [55] - [56] (French CJ & Kiefel J); AK v Western Australia [89], Heydon J citing Gleeson CJ, 'Judicial Accountability', (1995) 2 The Judicial Review 117, 122.

15 Section 31 of the Magistrates Court Act 2004 (WA) (the Act) moulds this common law duty to give sufficient reasons by setting out, in general terms, a minimum content for reasons for decision. It provides as follows:

(1) The Court's reasons for a judgment in a case -

(a) need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so;

(b) need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so;

(c) need not canvass all the evidence given in the case; and

(d) need not canvass all the factual and legal arguments or issues arising in the case.

(2) The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.

16 Against the common law background, s 31 of the Act makes general provision for the core or minimum content for reasons for decision in a Magistrates Court. In the Explanatory Memorandum to the Magistrates Court Bill 2003 (WA), the purpose of cl 31 (which became s 31 of the Act) was expressed to be 'to ensure consistency between the material content of the court's judgments, to facilitate understanding by the parties affected and to aid determination of whether grounds of appeal exist'.

17 Section 31 of the Act therefore requires that the judgment identify the facts accepted and the law applied, the reasons for doing so, as well as the underlying intellectual process behind the conclusions reached: Tran v Clayton [2003] WASCA 318 [37] - [38] (McLure J); Bennett v Carruthers [2010] WASCA 131 [31] (Mazza J).

18 In each case, an assessment of whether the minimum content, or sufficiency, for reasons has been met requires consideration of the reasons as a whole, including findings which can be inferred from reasons: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443 (Meagher JA); Bennett v Carruthers [27] (Mazza J). Further, the reasons, considered as a whole, cannot be divorced from the context of the case, including the manner in which the case is conducted, the significance of evidence or legal issues, concessions which are made, and matters which are not disputed. Other factors to consider are whether (as in this case) the decision was reserved (see Pallot v Harrison (Unreported, WASC, Library No 950261, 12 May 1995) 6 (Owen J)) and, associated with that, the time period for which it was reserved (seven weeks in this case), whether there were substantial oral or written submissions (in this case, 31 pages of closing submissions from the accused and 27 pages from the respondent) and the nature and content of those submissions in relation to the issues concerned.

19 The need to consider the reasons, as a whole, in light of all the circumstances of the case means that analogies with other cases will not usually be helpful to determine whether the reasons are sufficient.

20 In light of the above discussion, the complaint in the first ground of appeal that the learned magistrate failed to 'consider all the evidence' in his reasons is misconceived. There was no obligation upon his Honour to canvass all the evidence in his reasons. Indeed, s 31 of the Act specifically negates such an obligation. However, the suggestion in the ground of appeal that the reasons were not 'adequate' is a shorthand expression which directs attention to the duty, set out above, to give reasons for decision which are sufficient in all the circumstances to satisfy the functions of the exercise of judicial power.

21 The first two grounds of appeal focus upon the reasons of the learned magistrate in relation to self-defence. Section 248(1) and (2) of the Criminal Code provide that a harmful act, being the element of an offence (including unlawful wounding), is lawful if the harmful act is done in self-defence. Section 248(4) defines self-defence as follows:

A person's harmful act is done in self-defence if -

(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and

(b) the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and

(c) there are reasonable grounds for those beliefs.

22 The defence will be made out if all of the three elements ((a), (b) and (c)) are satisfied. It is common ground in this appeal that the learned magistrate did not reject the claim of self-defence by reference to s 248(4)(a).

23 The first ground of appeal requires consideration of whether the learned magistrate gave sufficient reasons for his conclusion that the appellant had reasonable grounds for his belief that his harmful act was necessary in order to defend himself from a harmful act (s 248(4)(c)). The second ground focuses upon his Honour's application of the law in relation to s 248(4)(b).

24 At trial, the appellant's case in relation to s 248(4)(c) had focused heavily on his claim that he had a reasonable belief that he would be harmed by the complainant. In developing his case that he had a reasonable belief that he would be harmed by the complainant, counsel for the appellant at trial relied upon a number of matters:

(i) He gave evidence that immediately before he struck the complainant with the glass, the complainant and the complainant's brother began shouting at him, that he saw the complainant's hands moving up, and that he thought that the complainant was going to punch him again (ts 10 - 11, 53 - 54, 2 February 2011).

(ii) He called only two other witnesses, his friends Mr Watson and Mr McKay. They both gave evidence of shouting or verbal aggression towards the appellant. They also described the complainant's movements and their opinion from those movements that the complainant was going to strike the appellant before the appellant struck the complainant (ts 69 - 70 (Watson), ts 89 - 90 (McKay), 2 February 2011).

(iii) He relied upon evidence of the previous assaults upon him by the complainant, and the sudden nature of these assaults, in support of his belief that the complainant was going to strike him again (defence, closing submissions [17] - [30], [161] - [164]).

(iv) He relied upon evidence of his good character, in particular his lack of aggression on any other occasion, given by Mr Watson and Mr McKay (ts 71, 84 (Watson), ts 92, 104 (McKay), 2 February 2011; defence, closing submissions [109] - [117]). Similar evidence was also given also in his video record of interview: 'I can get a million people who'll tell you that I'm the most placid person you'd ever meet' (page 20);

(v) He relied upon his statements in the video record of interview, given shortly after the incident, to the effect that he 'wanted to get the first one in' because he feared what was about to happen (defence, closing submissions [216] - [217] and video record of interview, page 10). On another occasion in the video record of interview he said 'I don't, I, look, when I hit him, I honestly remember it, there was three of them there and it was, like, hit him because get one in before they get you ...' (video record of interview, page 18).

(vi) His trial counsel also submitted that the CCTV footage showed that the complainant had moved in towards the appellant and was raising his right hand, as if to strike the appellant, immediately before the appellant struck the complainant (defence, closing submissions [55], [163] - [164]).

25 The particulars of the first ground of appeal focus upon the learned magistrate's failure to deal with the matters in (ii) and (iii) above. During oral argument, senior counsel for the appellant also relied upon issue (iv) (which was raised in the fourth ground of appeal and is dealt with in more detail under that heading below).

26 The witnesses called by the respondent gave evidence which was, in some respects, equivocal in relation to whether the appellant could have had a reasonable belief that he would be harmed by the complainant. The complainant's evidence was that 'there was no raising or clench[ed] fists or aggressive movement' but the complainant accepted that as he turned to the appellant he may have been starting to raise both hands (ts 45, 31 January 2011). The complainant also said that he raised his right hand about 15 degrees, but not above the waist (ts 48, 31 January 2011). The evidence of one of the complainant's brothers was that 'to tell you the honest truth, I didn't see [the complainant] do anything' (ts 61, 31 January 2011). The evidence of the other of the complainant's brothers was that 'I think it happened too fast for anybody to be able to see that' (ts 95, 31 January 2011).

27 The CCTV footage of this incident was played during the hearing of this appeal. It is of considerable importance to this ground of appeal. Immediately after the hearing I viewed it several more times, and watched the moments of the critical incident numerous times. There is, of course, no audio. The images are not very clear. In the moments immediately before the appellant strikes the complainant with the glass, the group are standing some distance from the camera. Parts of the appellant's body are concealed by three different people. A bright light is reflecting above the complainant's face. Part of the complainant's body is concealed by two people (including the appellant) who are standing immediately in front of him with their backs to the camera. In my opinion, the learned magistrate was, with respect, correct in his conclusion, at one point in his reasons, that 'the accused's body prevents the camera catching what the complainant's right hand was doing' (page 8). The time which elapses from when the complainant begins turning around until the appellant hits him with the glass is fewer than five seconds.

28 As mentioned above, following the trial the learned magistrate reserved his decision for seven weeks. His Honour received lengthy written submissions from both parties. His Honour's reasons are neatly structured and the section concerning self-defence is contained under a separate heading. In explaining that self-defence should be rejected, his Honour said, succinctly, that he had relied upon 'the evidence of the CCTV, the video record of interview, [the appellant's] own evidence and the evidence of the other witnesses for the prosecution and the defence'.

29 Apart from the CCTV footage, in the learned magistrate's discussion of self-defence his Honour did not elucidate which aspects of these matters he was relying upon in reaching his conclusion, or why any of these matters supported his conclusion that the appellant was not acting in self-defence. His Honour also did not refer to any of the matters particularised and relied upon by the appellant and which formed part of the appellant's case at trial, as described at [24] (ii), (iii) and (iv) above.

30 The learned magistrate's reasoning, concerning the CCTV, in his section dealing with self-defence was that '[o]n the CCTV vision there are no actions by the complainant's hands for the accused to reasonably believe that the complainant was going to do a harmful act to him' (pages 15 - 17). This conclusion is not entirely consistent with his Honour's earlier summary of the facts, where his Honour explained that it was not possible to see the crucial right hand of the complainant on the CCTV, so he had relied upon the actions of the rest of the complainant's body: 'the accused's body prevents the camera catching what the complainant's right hand was doing, but there is no act of aggression from the rest of his body that suggests he was about to strike the accused with his right hand' (page 8). In a further passage, his Honour accepted that the complainant's arms may, in fact, have been moving: 'the complainant's arms may have been moving as he was involved in an animated discussion with the accused's friends as he turned around' (page 15). And in a different passage his Honour said that the CCTV footage confirms that the complainant's hands were, in fact, moving but that they had not reached the position where a reasonable assessment was that the complainant was about to throw a punch (page 17). Although these findings are not consistent, the inconsistency is likely to be the result of the poor quality and obstruction of the complainant in the CCTV images as described above at [27], together with the period of fewer than five seconds during which the entire incident occurred. As counsel for the respondent on this appeal accurately submitted 'that precise instance, as unfortunately seems to happen on every CCTV case, that precise instance where you really want to be able to see something you can't' (ts 37).

31 The conclusion that the appellant held no reasonable belief that he would be harmed by the complainant was one which was available to the learned magistrate. If the CCTV footage had been clearer, so that his Honour had been able to make a clear finding about that footage, then the conclusion in relation to this ground of appeal may have been different. But, in all the circumstances of this case, particularly those referred to above at [24] - [28], the learned magistrate was required to give proper consideration to the evidence additional to the CCTV footage. The evidence was not merely the evidence of Mr McKay and Mr Watson which purported to explain events which could not be seen or heard on the CCTV footage (or, at best, could not be seen clearly). It was also the other evidence which was relevant to the reasonableness of the appellant's belief that he was about to be attacked: the previous assaults on him by the complainant and the shouting by the complainant and his brother immediately before the appellant's harmful act, together with the evidence of his good character (lack of aggressive nature).

32 Therefore, the learned magistrate was, with respect, entirely correct to explain that he had relied upon a larger body of evidence in reaching his conclusion rejecting self-defence; namely the video record of interview, the appellant's own evidence and the evidence of the other witnesses for the prosecution and the defence. However, it was not sufficient simply for his Honour to recite the fact that these matters had been considered. This was because the appellant's case at trial had been that most of these matters which the learned magistrate listed supported the defence case: the video record of interview, the appellant's own evidence and the evidence of the other witnesses for the defence, including their evidence about the previous assaults and the appellant's good character. The remaining matter referred to (the evidence of the prosecution witnesses, as set out above) was, as counsel for the respondent on the appeal accepted, equivocal in some respects, although in other respects some of that evidence supported the prosecution case. Therefore, the conclusion I reach is that in the circumstances of this case the reasons of his Honour were not sufficient to elucidate the underlying intellectual process for rejection of the defence of self-defence by reference to s 248(4)(c) of the Criminal Code.

33 Counsel for the respondent submitted that if adequate reasons were not given in relation to s 248(4)(c) then the appeal could still be dismissed if the learned magistrate's conclusion rejecting self-defence based on s 248(4)(b) were upheld. Self-defence requires the satisfaction of both of the limbs which were in issue. The effect of this submission was implicitly to rely upon the proviso in s 14(2) of the Criminal Appeals Act. This means that although a miscarriage of justice exists in relation to this ground of appeal, the appeal might still be dismissed if s 248(4)(b) itself established the appellant's guilt beyond reasonable doubt, as the learned magistrate found. I accept this submission. It was not contended by senior counsel for the appellant that this was a case where the denial of procedural fairness was so significant that even if the court were persuaded beyond reasonable doubt of the appellant's guilt based on s 248(4)(b) then the appeal should still be dismissed: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [45]; AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438.

34 Although I have found that a miscarriage of justice occurred in relation to the first ground of appeal, the proviso means that it is not possible to conclude that there was a substantial miscarriage of justice without consideration of the second ground of appeal concerning the learned magistrate's decision in relation to s 248(4)(b).

Ground 2: the legal test in relation to s 248(4)(b)

35 This ground of appeal focuses only upon the learned magistrate's application of the legal test for the element of self-defence required by s 248(4)(b).

36 At the outset of his reasons, the learned magistrate accurately quoted the entirety of s 248(4) of the Criminal Code (pages 1 - 2). However, in the section of his Honour's reasons dealing specifically with his reasoning and conclusions on self-defence, the learned magistrate held (page 15) that the defence should be refused on the basis of s 248(4)(b) because the appellant's act 'could not be said to be a reasonable response in the circumstances'. With respect, this was an incorrect application of the test in that subsection. It was an application of only the objective component of s 248(4)(b) without the associated subjective qualification. In other words, his Honour ought to have considered the reasonableness of the appellant's response in the circumstances 'as the person [ie the appellant] believes them to be'.

37 The simple point, therefore, is that the learned magistrate never determined whether, under s 248(4)(b), the harmful act committed by the appellant was a reasonable response by the appellant in the circumstances 'as the appellant believed them to be'. In order to reject the appellant's case under s 248(4)(b) his Honour needed to conclude, contrary to the appellant's case, that the appellant had no belief that he was about to be attacked. Such a conclusion would necessarily mean that the appellant's harmful act was unreasonable in the circumstances as the appellant believed them to be. Alternatively, a second possible route to rejecting a claim for self-defence would be if his Honour had concluded that although the appellant had a belief that he was about to be attacked, his response of punching the complainant with a glass in his hand was, in the circumstances of the appellant's belief, unreasonable. Neither of these conclusions was reached, explicitly or implicitly.

38 As to the first possible route to rejecting s 248(4)(b), after reciting the evidence of the appellant that he was about to be attacked the learned magistrate expressly left open the question of whether the appellant's evidence should be accepted as a genuine belief. He said that 'even on that account it was only a figment of his imagination that [the complainant] was about to punch him' (page 16). His reasoning then concludes that this belief was unreasonable (a matter relevant to s 248(4)(c), which I have discussed above in relation to the first ground of appeal).

39 As to the second possible route to rejecting self-defence based on s 248(4)(b), there is nothing in the learned magistrate's reasons which discusses whether the appellant's response of hitting the complainant with a glass in his hand was a reasonable response based upon accepting the appellant's evidence that he had a need to defend himself from attack (ie that the complainant was about to punch him). Consideration of this question would involve determination of facts such as the extent of the threat which the appellant believed that he faced from the complainant and the complainant's brothers, whether the appellant had reasonable alternatives open to him in the time available and so on. This route was not considered or determined.

40 Counsel for the respondent submitted that the learned magistrate had impliedly found that the appellant's response was unreasonable in the circumstances as the appellant believed them to be. Counsel referred to a passage in an earlier section of the learned magistrate's reasons in which the facts and issues were summarised generally. In that passage, the learned magistrate, after suggesting that there was very little dispute about the factual situation, said that it 'all depends on [the] state of mind of the accused at the point he smashed the glass into the complainant's face' (page 6). This appears to be a reference to what the learned magistrate considered to be the substantial factual issue in dispute. In the section of his reasons dealing with the unwilled act defence the learned magistrate plainly and, with respect, properly, makes it clear that the state of mind of the appellant was relevant to that issue (pages 13 - 14). In that section on unwilled act, the learned magistrate also underlined the words 'had knowledge', just as he underlined references to knowledge in his earlier discussion of the video record of interview after the appellant is asked where he hit the respondent with the glass. The learned magistrate's reference on page 6 to the state of mind of the appellant seems to be to the factual issue of the appellant's beliefs in relation to the unwilled act defence.

41 There is a further difficulty facing the submission that there was a implied rejection of the s 248(4)(b) requirement by the learned magistrate's reciting that it all depends on the state of mind of the accused. Even if that reference is taken to be a reference also to s 248(4)(b), it simply recites that this is a factual issue in the case. As I have mentioned above, in the substantive discussion of self-defence, the learned magistrate expressly left open the possibility that the accused genuinely held the beliefs about which he gave evidence. Finally, if the submission were correct that the learned magistrate had rejected the appellant's subjective belief that he was about to be attacked then the appellant's case ought to have been rejected on the basis also of s 248(4)(a). It is common ground that it was not.

42 For these reasons, the general reference in the summary of facts to the importance of the appellant's belief does not alter the conclusion that in the learned magistrate's reasons specifically in relation to self-defence, the correct subjective qualification to the test in s 248(4)(b) was not applied. No determination was made that the appellant's act was unreasonable in the circumstances as the appellant believed them to be.

43 It was certainly possible for the learned magistrate to have reached a conclusion that in the circumstances, as the appellant believed them to be, the appellant's harmful act was an unreasonable response, or even that the appellant did not hold a genuine belief that he was about to be attacked. But because the learned magistrate focused only upon the objective question of the reasonableness of the appellant's response in the circumstances (rather than the circumstances as the appellant believed them to be), that process of reasoning was not engaged. And it is a process of reasoning which the learned magistrate, with all the evidence in front of him, including disputes about witness credibility, was in a better position than this court to assess.

44 As with the first ground of appeal, the conclusion that the learned magistrate applied the incorrect test in relation to s 248(4)(b) does not, by itself, mean that this ground of appeal succeeds. There was a miscarriage of justice to the extent that a conviction rested on rejection of s 248(4)(b). The miscarriage of justice is a substantial miscarriage because of the combination of my conclusions in relation to the first ground of appeal (s 248(4)(c)) and the second (s 248(4)(b)).

45 I would allow the appeal on the first and second grounds, in combination.

Ground 3: characterisation of 'harmful act'

46 This ground can be dealt with quite shortly. The issue raised by this ground of appeal is whether the learned magistrate erred in characterising the relevant 'harmful act' for the purposes of s 248(l) as the appellant's act of 'smashing the glass into the complainant's face' rather than, as senior counsel for the appellant suggests, 'punching the complainant knowing that he had a glass in his hand'. In circumstances in which the glass actually did smash, this is a distinction without a difference. This was a case where, as Martin CJ explained in Scolaro v Shephard [No 2] [2010] WASC 271 [62], either factual version was quite sufficient to sustain a conviction. In this case, the two characterisations were simply different verbal formulae describing the same factual event which occurred. Further, the expression 'smashing' which was used by the learned magistrate, was the same expression used by two of the prosecution witnesses (the complainant's brothers). No suggestion was made at trial or on appeal, nor could one have been made, that the appellant's actions did not involve a 'smashing' of the glass.

48 The final ground of appeal concerns the failure by the learned magistrate to take account of the good character of the appellant by adverting to it in his reasons for decision. In my discussion above of the first ground of appeal, this was one of the circumstances of the case which I considered in assessing whether sufficient reasons had been given in relation to the conclusion reached by the learned magistrate rejecting s 248(4)(c) of the Criminal Code. The question raised by this ground of appeal is whether the failure to take good character into account is, of itself, a sufficient ground for allowing the appeal. This requires consideration of the relevance of the good character evidence in relation to s 248(4)(b), s 248(4)(c), and s 23A of the Criminal Code, and the appellant's credibility generally.

49 The leading case on the directions required to be given to a jury in relation to good character evidence is Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1. In that case, the question before the High Court of Australia was whether there had been a miscarriage of justice because the trial judge had directed the jury only in relation to one aspect of good character evidence. The trial judge had told the jury that evidence of the good character of the accused could be taken into account on the issue of that person's guilt, but her Honour failed to direct the jury that the evidence could also be taken into account when assessing the accused's credibility. A majority of the High Court held that the trial judge had a discretion whether to give a good character direction in relation to the accused's credibility. The majority held that the character evidence in relation to the accused's credibility in that case did not have such probative significance as to require the trial judge to give a direction. One factor of significance for Hayne J (with whom Gummow J agreed) was that counsel had not sought a direction for the jury that good character evidence could be used in relation to the accused's credibility [136].

50 In his judgment, Gummow J quoted, with approval, from the decision of Thomas J in R v Falealili [1996] 3 NZLR 664, 671 - 672. Part of that quotation was as follows:

In some cases the good character of the accused may be an integral part of the defence. A number of reputable persons may have testified as to the accused's character. In other cases the so-called evidence of good character may be little more than a passing reference, included by defence counsel, perhaps, simply because there is no other defence. In other cases the established facts of the case may itself indicate that, irrespective of how unblemished the accused's reputation may be, he or she can barely be described as a person of good character. Because the circumstances will vary greatly it is not possible to lay down comprehensive guidelines as to when and how the Judge's discretion should be exercised. Nor is it desirable to do so.

51 The same reasoning about good character must apply to the legal reasoning in a magistrate's decision, which stands in place of a direction to the jury. However, one qualification is that the exercise of a magistrate's discretion to provide reasons in relation to good character must also be understood in light of s 31 of the Act, as I have explained above in relation to the first ground of appeal. It was not submitted that s 31(1) had removed entirely the obligation to consider and refer to good character evidence in cases where, as a matter of law, it would otherwise be concluded that a magistrate's discretion should have been exercised to make that reference.

52 In this case, it was properly accepted by the respondent that 'the relevance of the good character evidence was squarely before the learned Magistrate for consideration' (respondent's appeal submissions [22]). The evidence of good character included evidence from Mr Watson, Mr McKay, and the appellant's video record of interview. The references are set out above at [24](iv). The good character evidence essentially concerned the appellant's lack of an aggressive nature and his lack of aggression on other occasions.

53 The learned magistrate did not refer to any of this evidence of the appellant's good character in his reasons. The reference in his section on self-defence (page 17) simply to having considered the evidence of witnesses for the defence was not sufficient if the circumstances required his discretion to be exercised to advert in his reasons to having considered the good character evidence.

54 Senior counsel for the appellant submitted that the evidence of good character was of such importance that it required the learned magistrate specifically to advert to it. Counsel for the respondent submitted, first, that the character evidence was not evidence which particularly 'stood out'; secondly, that the appellant had given evidence that he had been stunned after the attacks upon him by the complainant and that character evidence cannot account for someone's actions in that state; and thirdly that since there was CCTV footage of the incident from which the learned magistrate made his decision, the good character evidence could not have been of much assistance.

55 In order to determine whether the learned magistrate was required to exercise his discretion to consider and refer to the good character evidence, it is necessary to consider the significance of that evidence to the case. The good character evidence was potentially relevant to the appellant's case in relation to each of his two defences as well as to his credibility generally.

56 First, the good character evidence supported the defence of self-defence because, if accepted, it could provide some support for a submission that the appellant was not the sort of person who would have committed the harmful act unless he had an honest belief that he would, himself, be subjected to a harmful act. It might also have provided some limited support for the appellant's credibility generally in relation to matters relevant to the reasonableness of the appellant's belief. These matters included his evidence about the circumstances immediately preceding the moment he struck the complainant with the glass: that the complainant's brothers were shouting at him, and that the complainant's hand and arm movements caused him to apprehend being harmed.

57 Secondly, the evidence of good character supported the appellant's defence of 'unwilled act' pursuant to s 23A of the Criminal Code because, if accepted, it could provide support for a submission that the appellant was not the sort of person who would hit another in the face with a glass if he knew he was holding the glass. It also may have supported the appellant's credibility in relation to his evidence that he had no knowledge that he was holding the glass.

58 As to self-defence, I have concluded above, in relation to ground 2, that the learned magistrate did not make any adverse findings based on the appellant's evidence in relation to s 248(4)(b). Because the learned magistrate applied only an objective test, he did not reject the appellant's evidence that the appellant held a subjective belief that he was about to be harmed. In those circumstances, his Honour was not required to exercise his discretion to advert to good character evidence in relation to the issue raised by s 248(4)(b).

59 Nor do I consider that the good character evidence was sufficiently relevant in relation to the reasonableness of the appellant's belief that he was about to be harmed (s 248(4)(c)) to require the learned magistrate to consider and advert to it. As explained above, at [24], the good character evidence was one of a number of factors, the combination of which required the learned magistrate to disclose his reasoning for rejecting the appellant's case in relation to s 248(4)(c). Some of those factors assumed much greater significance for the reasonableness of the appellant's belief that he was about to be attacked: namely the evidence of the previous assaults on the appellant, and the evidence of Messrs McKay and Watson concerning what they saw.

60 Finally, there is the question of the relevance of good character evidence in relation to s 23A, the defence of unwilled act. There were difficulties with the appellant's case in relation to his defence of unwilled act. The appellant's defence was that he did not know that he was holding the glass when he struck the complainant: see Duffy v The Queen [1981] WAR 72. The principal difficulty for the appellant was that he made several remarks in the video record of interview shortly after the incident to the effect that he knew he had a glass in his hand. His case at trial was that he had been left dazed and stunned by the force of the complainant's headbutt and that the police officers at the scene had told him that he had a glass in his hand at the point of striking the complainant. Hence, his trial counsel submitted, the appellant's comments in the video record of interview had to be understood as reflecting what he had been told by the police officers rather than his actual knowledge at the time of striking the complainant (defence, closing submissions [130] - [159]). But it was of significance that the appellant never said in his video record of interview that he did not remember having the glass in his hand at the time he struck the complainant.

61 The learned magistrate rejected the appellant's defence of unwilled act for several reasons: the CCTV images showed the appellant with a glass in his hand; the appellant had made comments in the video record of interview about how he had taken possession of the glass; there was no interceding event which could have caused the appellant to forget that he had a glass in his hand; and the appellant had made comments on the video record of interview that he had a glass in his hand at the time of striking the complainant (page 14). Although the CCTV images did not have any real significance to the question of whether the appellant knew he was holding the glass at the relevant moment, the other reasons referred to by the learned magistrate did provide a sufficient basis for the learned magistrate to find that the appellant had knowledge that he was holding the glass at the relevant time. The question is whether the learned magistrate ought also to have adverted to the appellant's good character in his reasoning which rejected the appellant's evidence about his knowledge of the glass.

62 On the one hand, there was not much evidence against which to assess the appellant's subjective knowledge concerning whether the glass was in his hand. The video record of interview was significant for the reasons I have mentioned. But, apart from the appellant's demeanour in the witness box, and his character generally, there was little else against which to test the appellant's assertion that he had no knowledge that the glass was in his hand at the relevant moment. In this context, the good character evidence which asserted a lack of the appellant's aggressive nature assumed some relevance in determining whether the appellant's evidence should be accepted. Counsel for the appellant at trial had set out his submissions on this good character evidence under the heading 'Demeanour of witnesses' (defence, closing submissions page 14).

63 On the other hand, although the appellant's trial counsel (who was not counsel on this appeal) made general reference to the evidence of the good character of the appellant in his written closing submissions at trial, he did not explain how it was relevant to s 23A of the Criminal Code. This militates against a conclusion that the learned magistrate was required to exercise his discretion to consider, and advert to, the good character evidence in relation to s 23A. As counsel for the respondent on this appeal suggested, one reason for the failure of trial counsel to make such a submission might have been the appellant's evidence at trial that he had been stunned from the earlier headbutt by the complainant. The learned magistrate also found that when the appellant walked over to the group where the incident occurred, he appeared to do so slowly and calmly and that the appellant was under the influence of alcohol. In those circumstances, evidence of his lack of aggression on any other occasions had less significance in relation to the question of whether, in these particular circumstances, the appellant acted aggressively with the knowledge that he had the glass in his hand. On balance, for these reasons I consider that although the good character evidence was relevant to s 23A, it was not of sufficient relevance or importance as to require the learned magistrate to exercise his discretion to consider and refer to it in his Honour's reasons for decision.

64 Overall, I conclude that the evidence of good character was not sufficiently relevant to the issues of either self-defence or unwilled act, singly or in combination, to require the learned magistrate to consider and to refer to it.

66 The appeal is allowed on the first and second grounds, in combination. The third and fourth grounds of appeal are dismissed.

FRANCIS -v- TODD [2011] WASC 185 (3 August 2011)

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FRANCIS -v- TODD [2011] WASC 185 (3 August 2011)

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