Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Betts v Hardcastle [2001] WASCA 35

Calvetti v Warner, unreported; SCt of WA (Owen J); Library No 8960; 4 July 1991

Chew v The Queen (1991) 4 WAR 21

Harling v Hall (1997) 94 A Crim R 437

Krakouer v Durka [2003] WASCA 141

M v R (1998) 104 A Crim R 154

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

Minniti v The Queen [2001] WASCA 148; (2001) 120 A Crim R 531

Stanik v The Queen [2001] WASCA 333; (1999) 125 A Crim R 372

Van den Hoek v The Queen (1986) 161 CLR 168

Watt v Thomas [1947] AC 484

1 PULLIN J: This is an appeal by the appellant against his conviction of assault of John Duncan causing Mr Duncan bodily harm, which conviction was recorded by Mr Bromfield SM on 17 June 2003.

2 The events giving rise to the conviction occurred on 1 May 2002. The Magistrate found that the appellant had a relationship over a number of years with a Ms Allardyce, but this relationship had turned into what the appellant's counsel described as an "on again off again" relationship. The appellant lived in City Beach. Ms Allardyce lived at Farris Place, Innaloo. Next door to Ms Allardyce lived the complainant, Mr Duncan. Ms Allardyce and Mr Duncan had, a few weeks before 1 May 2002, formed a close friendship and then an intimate relationship.

3 On 1 May 2002, the appellant and Ms Allardyce had been out to dinner at a restaurant and had consumed a considerable amount of alcohol. The purpose of the dinner, from the point of view of Ms Allardyce, was to gain the appellant's assistance in recovering some money due to Ms Allardyce by a mining company. After dinner, the appellant and Ms Allardyce went to Ms Allardyce's house. An argument developed. Voices were raised to such a degree that Mr Duncan came in from next door to see if Ms Allardyce was in need of help. Mr Duncan spoke to the two of them and then left. However, there was further argument and screams from Ms Allardyce, and this led Mr Duncan to believe that Ms Allardyce did need help, so he returned to the house.

4 He came across the appellant and Ms Allardyce in the hallway. According to the appellant, Mr Duncan said: "Leave my girlfriend alone".

5 The learned Magistrate found the appellant took hold of a portion of Mr Duncan's clothing around the neck region and pushed him back into a nearby bedroom. The appellant swung five punches at Mr Duncan; one of these struck Ms Allardyce in the face and she fell to the floor unconscious, and three of them struck Mr Duncan in the head, causing him bodily injury to the face. Mr Duncan also suffered injury to his forearm, but the Magistrate said that he was left in some doubt as to how that injury was caused.

6 The appellant argues that the Magistrate erred by failing to hold that the charge was bad for duplicity.

7 The appellant had asked for particulars of the charge before the hearing. The prosecution declined, but indicated that from the prosecution's point of view, the whole course of conduct encompassed one event.

8 The appellant was represented by senior counsel at the trial. No submission was made, or ruling sought, that the charge was duplicitous at the commencement of the trial. The prosecution case was then opened, evidence led and closed. It was only after this that counsel for the appellant submitted that the complaint was bad for duplicity because the appellant's counsel said there were different blows, ie separate assaults, which may have caused different injuries - that is the injury to the eye and the injury to the forearm.

9 The appellant refers to s 43 of the Justices Act 1902, which states that a complaint should be for one matter only and not for two or more matters. It is true that a defendant should not have to defend himself on two charges in one: Vrisakis v ASC (1993) 9 WAR 395.

10 The respondent argues that Rippingale v The Queen (1999) 109 A Crim R 304 is authority for the proposition that duplicity is a pleading point and the point must be taken at the commencement of the hearing. Rippingale was a case involving an indictable offence heard before a jury, and s 590 of the Criminal Code states that any objection to the indictment must be taken before the jury is sworn, and not afterwards. This case was not a jury trial. However, s 590 is also applicable to cases of an indictable offence dealt with summarily. See s 593. This offence of assault occasioning bodily harm was an indictable offence. Section 590 requires some slight modification if it is to apply to the present circumstances, because a jury is not sworn in a case dealt with summarily. I read s 593 and s 590 of the Code, in combination, to mean that any objection to a charge for any defect apparent on its face, must be taken before the prosecution case commences, and not afterwards. As a result, this ground must fail.

11 There is, however, a second reason for dismissing this ground of appeal. The prosecution submitted that the charge was concerned with one continuous assault. Whether or not one continuous assault has occurred, or whether there are separate assaults, is a matter for applying a common-sense approach to the facts: Morrow & Flynn v The Queen [1991] 2 Qd R 309 at 312; Lomans v Morony [2000] WASCA 90. Senior counsel for the appellant conceded that if the correct conclusion was that the complaint alleged only one continuous assault, then this ground must fail. In my opinion, the complaint does allege only one continuous assault. It commenced in the hallway, when the appellant seized Mr Duncan by the throat, and continued when the appellant propelled Mr Duncan into the other room and aimed five blows at him, two of which, although aimed at Mr Duncan, missed him, and three of which struck him in the head and caused him bodily injury.

Failure to make findings and to give adequate reasons

13 The next ground is a complaint that the Magistrate erred in law in finding that the appellant's conduct in assaulting Mr Duncan was unlawful because it was not authorised, justified, or excused by law. The complaint is that the Magistrate failed to make specific findings that the prosecution had proved beyond reasonable doubt that the assault was not committed in self-defence, was not in response to provocation, and was not self-defence to the appellant's honest and reasonable, but mistaken, belief that he was being assaulted by Mr Duncan.

14 This ground is combined with another ground, namely that the Magistrate failed to give adequate reasons for his decision and, in doing so, failed to consider the specific elements of the defences of self-defence, provocation and self-defence based on the appellant's honest and reasonable, but mistaken, belief that he was being assaulted.

15 The Magistrate correctly directed himself that the prosecution carried the burden of establishing all the elements of the charge beyond reasonable doubt; that it was not for the defendant to prove anything; and that if from the evidence a defence was raised, then it was for the prosecution to negate that defence.

16 The Magistrate's reasons for decision were given ex tempore. This Court should not be over-critical of the reasons given by a Magistrate in a busy court: Nevermann v The Queen (1989) 43 A Crim R 347 at 350; Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 at 248. Even so, it is the obligation of a judicial officer to give sufficient reasons for decision so that the losing party can see why he or she lost the case; in other words, so that justice is not only done, but can be seen to be done, and because it is necessary for reasons of sufficient clarity to be given to allow scrutiny by an appeal court: Lloyd v Faraone [1989] WAR 154 at 162-164; Garrett v Nicholson (supra).

17 It is clear that defences were raised by the evidence. The first was self-defence. It became apparent from the evidence given by the appellant that he claimed he was acting in self-defence, and senior counsel for the appellant addressed the Magistrate concerning self-defence and provocation.

18 Counsel for the appellant submits that all the findings relevant to these defences were not made and, in addition, submits that the Magistrate failed to consider the provisions of s 24 of the Criminal Code, and therefore failed to make findings in relation to that section. Counsel for the appellant submitted that s 24 arose because even if Mr Duncan did not threaten to strike the appellant, then the issue arose as to whether the appellant honestly and reasonably believed that he was being assaulted, in which case self-defence, based on that mistaken view of the facts, had to be considered.

19 All of these defences incorporate within them an objective element, and some incorporate both objective and subjective elements. So, in the case of provocation, the defence will only succeed if the accused was provoked (the subjective element) and if an ordinary person would have been deprived of the power of self-control by the particular act or insult in question (the objective element).

20 In the case of s 24, the section applies if the accused honestly held the mistaken belief in the existence of the state of things (the subjective element) and if that belief was reasonably held (the objective element).

21 Self-defence to an unprovoked assault is a defence which applies if the accused is unlawfully assaulted. The accused will be assaulted if the victim, by act or gesture, attempts or threatens to apply force to the accused without his consent under circumstances where the victim has an apparent ability to effect his purpose, in which case the accused may use force by way of defence as is reasonably necessary (objective elements) to make an effective defence against the assault.

22 The prosecution bears the onus of disproving these defences to the required standard. The prosecution does not, however, have to prove beyond reasonable doubt that both the subjective and objective elements do not exist. So, for example, in the case of provocation, the prosecution may, in fact, concede that the accused was provoked but may contend, and prove to the required standard, that a reasonable person, with the attributes of the accused, would not have been provoked. If so, the prosecution will have negatived the defence.

23 It may be desirable for a judicial officer to consider, and make findings about, all elements, but in a straight-forward case, a Magistrate might decide that he or she will only deal with one or other of the elements. In other words, to deal with, say, a provocation defence by holding that no reasonable person would have been provoked, without making any finding about whether the accused was himself provoked.

24 I say that it may be desirable for the judicial officer to deal with all aspects, because it may save costs and the further time of the Court in the event of an appeal. So, for example, if the Magistrate deals only with the objective element of the defence and the case goes on appeal and the Magistrate is held to be wrong in his or her conclusion, then a re-trial would have to be ordered, whereas if the Magistrate held that the accused was not himself provoked and that no reasonable person would have been provoked, then even if the Magistrate is held to be in error in relation to the finding about the objective element, the appeal court may agree that the Magistrate was correct in his or her finding about the subjective element, in which case the appeal would be dismissed.

25 With those background comments, I now turn to some details in the reasons for decision.

26 The Magistrate, after saying that statements by Mr Duncan about Ms Allardyce being Mr Duncan's girlfriend "could be provocative" and that the accused's response was to seize hold of Mr Duncan and push him backwards, then referred to the subsequent events and said:

"... Duncan who had - not from any view of the evidence, whether it be the evidence given by Duncan or the defendant, ... in any way acted by way of response to being pushed backwards, other than to regain his balance ... ending up in the middle of the secondary bedroom. The defendant's conduct of then swinging blows at Mr Duncan, who was not acting aggressively towards the defendant, was conduct that in my view is not authorised, justified or excused by any provisions contained in the Criminal Code.

The assault was unlawful."

The passage reflects some difficulties of syntax, but I have edited it in the way in which I understand his Worship intended it should read. I have, by italics, emphasised the critical aspects of this passage.

27 His Worship's findings were that Mr Duncan was not acting aggressively and that all he tried to do was to regain his balance. These findings allow the reader to infer (and in my view it is the only inference which is open) that his Worship was there finding that Mr Duncan could not have led the accused to "reasonably" hold the mistaken view that he was being assaulted, could not have provoked an ordinary person in the position of the accused to have reacted as he did, and that nothing Mr Duncan had done amounted to a gesture which could have led the accused to conclude that he was being assaulted by Mr Duncan.

28 In short, the Magistrate found that the prosecution had negatived the objective elements of all the defences to which the appellant refers. I would dismiss the ground which alleges that the Magistrate erred in not making findings about all the elements. It was not necessary for him to do so.

29 It is quite true that the Magistrate did not make any findings about the subjective elements of the defences. So he made no findings about whether or not the accused honestly believed that he was being attacked by Mr Duncan, and made no finding about whether the appellant was provoked. If the appellant satisfies this Court that the Magistrate erred in his findings about the objective elements of the defences, then the decision will have to be quashed and remitted for rehearing.

30 I therefore turn to consider whether the Magistrate did err.

31 A transcript of the accused's own evidence reveals that while he was in the hallway, the appellant seized Mr Duncan by the throat and arm, propelled him from the hallway into the adjoining room, dealt out five blows aimed at Mr Duncan, the first two of which missed Mr Duncan, but one of which struck Ms Allardyce in the side of the face and resulted in Ms Allardyce being laid out on the floor, and the last three of which hit Mr Duncan in the head and face.

32 As I have already pointed out, the Magistrate found that Mr Duncan did not act aggressively and that his only reaction was to try to regain his balance after being pushed by the appellant. In view of those findings, I can find no error in the Magistrate's conclusion that the assault was unlawful, in that the assault was not authorised, justified, or excused by law, because his findings left open only one inference, and that is that the prosecution proved that all of the defences failed in relation to the objective element in each defence.

33 In my opinion, the reasons for decision are adequate reasons for decision. They do provide a short, but sufficient, explanation of why the defences failed.

34 In case I am incorrect in this conclusion, I will now consider s 199(1)(b) of the Justices Act 1902, which authorises the Court to consider whether there is any miscarriage of justice and, if not, to dismiss an appeal, even if some point raised might be decided in favour of an appellant. I consider that there is no miscarriage of justice. This Court is in as good a position as the Magistrate to consider the objective elements of the defences which were raised: Hart v The Queen [2003] WASCA 213. In Hart's case, the trial Judge did not leave the defence of provocation to the jury, and the Court of Criminal Appeal upheld this decision on the basis that no reasonable person could have been provoked as the appellant claimed. In my opinion, the fact that Mr Duncan came into the home and told the accused to "leave my girlfriend alone" and raised his arm, could not provoke an ordinary person to administer the beating administered by the appellant to Mr Duncan. I furthermore consider that the appellant could not reasonably have believed that he was being assaulted, given the Magistrate's findings about Mr Duncan's conduct, and I consider that, in any event, the force applied by the accused was beyond that reasonably necessary to make effectual defence against the assault that he perceived Mr Duncan was making upon him.

35 I would therefore dismiss these grounds of appeal.

36 The appellant in his evidence claimed that he apprehended that he was to be struck by Mr Duncan and that he acted in self-defence as a result. Mr Duncan denied that he threatened to strike the appellant, and the Magistrate accepted the evidence of Mr Duncan. His Worship found that Mr Duncan did not act aggressively towards the accused and that Mr Duncan's only response to the attack upon him was to try and regain his balance.

37 The appellant contends this was an error because:

"It was not open to The Learned Magistrate simply to accept Duncan's evidence on that point (as he apparently did) and consequently and necessarily reject Gardner's evidence."

38 Reference was made to Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507. Liberato is authority for the proposition that where there is a conflict in the evidence, then, even if the tribunal of fact prefers the evidence for the prosecution, it must not convict unless it is satisfied beyond reasonable doubt of the truth of that evidence. The tribunal must bear in mind that even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if the evidence gives rise to a reasonable doubt as to that issue.

39 There can be no doubt that the Magistrate had in the forefront of his mind that the prosecution carried the burden of establishing all the elements of the charge beyond reasonable doubt; that it was not necessary for the defendant to prove anything; and that if from the evidence a defence were raised, then it was for the prosecution to negate that defence by evidence. The Magistrate referred to these points just two sentences before making his findings that Mr Duncan had not acted aggressively and had merely tried to regain his balance.

40 This is not a case where the judicial officer has made the mistake of preferring the evidence of the prosecution against the evidence of the defence and convicting, without bearing in mind the importance of going on to consider, in the light of that conclusion, whether or not the prosecution had proved its case beyond a reasonable doubt.

41 The appellant points to the fact that the Magistrate said that both the appellant and Mr Duncan were "reasonable witnesses" and that there were a number of irreconcilable differences between the evidence given by Mr Duncan and that of the appellant, and that some of those issues could not be resolved. However, where there was a difference which could not be resolved, his Worship said so. For example, whether or not Mr Duncan was invited to come into the premises on the first occasion, was a matter on which Mr Duncan and the appellant disagreed, and his Worship said he was not able to resolve that point. It is quite clear, however, that he did resolve the issue about whether or not Mr Duncan had made any threatening gestures. He found that Mr Duncan did not.

43 This ground complains about the fact that the Magistrate did not refer to the evidence of witnesses who were called by the appellant to speak of the appellant's good character.

44 It is correct to say that where a direction must be given (for example, a Longman warning in a sexual case), then in a case being dealt with by a Judge alone, or by a Magistrate, the reasons must reveal that the judicial officer has directed himself or herself concerning that subject. It is no answer in a case where the reasons do not disclose any reference to the direction, to argue that the judicial officer was experienced and would have known about the law on the subject: Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250.

45 However, it is not the case that a direction must be given about good character evidence. It is a matter for the discretion of the judicial officer: Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 at [30]. If a direction is given, then the importance of character evidence must not be diminished, for example, by referring to it as of "limited" value: Wedd v The Queen [2000] WASCA 273; (2000) 115 A Crim R 205.

46 The appellant argues that the failure of the Magistrate to refer to the evidence of good character, suggests that the Magistrate may not have appreciated the significance of that evidence as tending to establish the defendant was less likely to have committed the offence with which he was charged.

47 I do not consider that the absence of any reference to the character evidence gives rise to that suggestion. Melbourne's case says that the court has a discretion as to whether or not the direction should be given, and the only conclusion that can be drawn from the absence of any reference to the evidence is that the Magistrate decided not to direct himself on that subject.

• Duplicity
• Failure to make findings and to give adequate reasons
• Findings based on evidence of Mr Duncan
• Good character