Gilmore (a pseudonym) v Duke [2026] ACTSC 55

1. This appeal is primarily concerned with the application of the common law test for self-defence.

2. The appellant entered a plea of not guilty in the Magistrates Court to one charge of aggravated assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act 1900 (ACT) (CC 2024/4664). The circumstance of aggravation was that the offence involved family violence.

3. The hearing proceeded before Chief Magistrate Walker on 22 May 2025. Following a day of trial, her Honour delivered her decision on 11 July 2025, finding the appellant guilty of the offence. The appellant was subsequently sentenced on 25 July 2025 to a good behaviour order for a period of 12 months.

The events leading to the charge

4. The charge arises from an incident between the appellant and his wife, who is the complainant. On the evening of 22 April 2024, police attended their residence in response to a report of a verbal disturbance. No further action was taken by the police at that time. Later in the same evening, the appellant and the complainant were in a vehicle, arguing about, amongst other things, the breakdown of their relationship. The complainant was driving the vehicle, and the appellant was sitting in the front passenger seat. The prosecution case is that the appellant became verbally abusive before striking the complainant three times in the face, breaking her nose.

5. After striking the complainant and while still in the vehicle, the appellant made a triple-zero call to police. The operator directed the appellant and the complainant to attend Belconnen Police Station.

6. The appellant does not deny that he intentionally or recklessly struck the complainant or that he caused her injury, but contends that he was acting in self-defence.

Evidence of the prosecution

7. The prosecution case was based on the evidence of the complainant, as recorded by body-worn camera footage of a conversation between Constable McLucas and the complainant, and her oral testimony given at trial.

8. At trial, the prosecution tendered portions of the body-worn camera footage captured by Acting Sergeant Duke (the police informant in this matter), which recorded a conversation between Acting Sergeant Duke and the appellant at Belconnen Police Station. The appellant participated in a taped record of interview, which was also played at trial. Finally, the prosecution tendered a recording of a triple-zero call placed by the appellant’s brother in relation to the verbal disturbance at home earlier in the evening, and a recording of a triple-zero call placed by the appellant shortly after striking the complainant.

9. I have, in the absence of the provision of full transcripts, watched and listened to the recordings tendered as evidence at trial. In respect of the triple-zero calls and the appellant’s record of interview with police, I was provided with transcripts of the recordings as part of the bundle of appeal materials, and to that extent I have relied upon the transcripts. Accepting the caution in R v ZT [2025] HCA 9; 281 CLR 137 at [10]-[11] and [19]-[20] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ) and in Pell v The Queen [2020] HCA 12; 268 CLR 123 at [36]-[37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) as to appellate review of electronic exhibits, and the need to recognise the advantage of the trial judge in seeing the entirety of the evidence, the lack of an available transcript in my view rendered such a viewing necessary. I note that at the hearing before me the appellant expressed no view on the matter and the respondent conceded that such a review may be necessary. I note also that for the purposes of the appeal I am not called upon to make any findings as to the credibility or reliability of the key witnesses.

Evidence of the complainant

10. The body-worn camera footage of the complainant’s conversation with Constable McLucas was taken as the complainant was seated in her car in the carpark of Belconnen Police Station. In the course of that conversation, the complainant told Constable McLucas that the appellant had threatened and “bashed me, trying to get me to call you [the police] and I said it's not going work”. She said the appellant told her he would “deliberately make sure your life’s fucked over” and that she should go and kill herself.

11. The complainant told Constable McLucas that she had sustained the injury to her nose because “he [the appellant] said he wanted me to call the police”, and “maybe he overheard what I said to you” during the earlier police attendance at the residence. The complainant said the appellant hit her because she refused to call police and he wanted to make her call them. When asked why the appellant may have wanted police called, the complainant said that it was because “he told me he believes that I will be in trouble … and he thinks that I have no right to be in the house”. She said the appellant hit her twice with his hand, but clarified that she thought it possible the second strike may have been with a part of his arm because “I didn’t see it coming”.

12. The complainant said the appellant told her “I deliberately hit you because I want to see you in pain, I want you to suffer”. She told Constable McLucas that the appellant was controlling and would gaslight her, and that she did not have anywhere else to go.

13. At trial, the complainant was called by the prosecution to give oral testimony. She gave evidence-in-chief to the effect that there were significant gaps in her recollection of the events of 22 April 2024, that she could recall being parked out the front of the police station but could not remember the events leading up to her arriving there. The complainant was asked about a cut on her nose visible in a photograph taken by police on the evening of the incident, but she could not remember how the cut arose.

14. The complainant was then cross-examined as an unfavourable witness following an application by the prosecution. She maintained that she could not recall any of the events leading up to her attendance at the police station. After watching Constable McLucas’ body-worn camera footage, the complainant said she could recall speaking to a female police officer but could not recall any details of the conversation.

15. In cross-examination by the appellant, the complainant stated her memory of the incident was better at the time, but agreed that she did not have a good recollection of events at the time of the incident either. The complainant agreed, after watching the body-worn camera footage again, that she could hear herself telling Constable McLucas that she could not recall exactly what happened and did not want to speak to police further about the incident.

Police interviews with appellant

16. The body-worn camera footage of the appellant’s conversation with Acting Sergeant Duke was recorded at Belconnen Police Station, prior to the appellant’s record of interview. Acting Sergeant Duke gave brief examination-in-chief evidence at trial and observed that the appellant seemed “quite shaken” and “out of breath and visibly upset” during the conversation.

17. Counsel for the respondent relied upon the following transcript in her submissions representing a portion of the recording, which occurred shortly after the appellant was cautioned by Acting Sergeant Duke: So, you, I was just talking you. So, like, pretty much when you guys left [the residence] she started back at me. Look I’m going to go to bed, you can yell and I – I – you can yell and scream all you want, I don’t want to do anything more. I went to bed and she’s like “You’re not going to go to bed I’m fucking [unclear], I’m going make you get up, I want to go and get a coffee.” I said, “I want to go to bed, I just want to go to bed”. “No!” ripped the sheets of me, “Get dressed you cunt!” And I was like, okay, fine. Got dressed, hopped in the car, she then got her coffee I’m just on my phone just looking at like this raiders thing and then she’s driving around Belconnen and I’m like “what are we doing” and then she thinks I’m going to call the police because like, I feel like I’m getting kidnapped. And then, like I literally got my phone and went to go put it on the charger because I’ve only got a couple of percent left, tried to put it on the charger and she grabbed it and I said “what are you doing” like what are you doing to the phone I need to like put it on the charger, she then gives me back the phone and then I was like why did you take my phone. She then goes “I thought you were going to call the cops on me” and I was like, “I will”. And then we get to like, Dickson and I think College Street and I like literally grabbed my phone and go I can’t do this anymore I’ve gotta call the police and then she grabs the phone and then I go like that, and she’s in the driver seat, I’m in the passenger and I go like that to get her away from me and I must have hit her like then, and then I’ve gone like this to try and call the police like to try and unlock my phone and she’s trying to grab me, grab my arms, and I’m like this, and I’ve gone like that to try and call the police and I’ve hit her twice more so that’s like the three times. And I’ve called you guys and I’m like telling you where like I am hoping you guys would come to us or and then she said can you come here and then she said yep, I’ll drive you there and I said, “yep good, drive me there”.

18. Acting Sergeant Duke and Constable McLucas then conducted a record of interview with the appellant at 11:50pm the same evening. The appellant said that before police attended the residence earlier that evening, he and the complainant had been yelling at each other as they were splitting up. The appellant said he messaged his brother to call the police because the yelling was getting “pretty substantial”.

19. The appellant said later that evening, he had gone to bed when the complainant “got the sheets off me” and told him to get in the vehicle so she could get a drink. After getting a drink at a service station, she told him, “We’re just going to drive around”. The appellant said he told her that he wanted to return home, and that she refused because she wanted to “discuss everything”, apparently in reference to splitting up. He says he responded, “Well, that’s fine. I’m happy to do that. We can just – we can just talk but we’ve been talking about it all night”. The appellant said he went to put his phone on the charger, and the complainant “grabbed the phone and said, ‘Are you calling the police’ and I said, ‘No, not yet. We’re just driving around’”. The appellant then put the phone on the charger.

20. The appellant said he and the complainant had continued yelling, when he “sort of grabbed my phone out of the centre console”. The appellant wanted to call the police because he “…just didn’t want to be there anymore cause I felt that I was getting a bit angry”. The appellant said that the complainant started accelerating the car as he attempted to unlock the phone. At this point in the interview, the appellant demonstrated to police that during this time, he had adopted a position turned away from the complainant and towards the passenger door. He said the complainant was driving the car “very slowly”.

21. The appellant said that as he was attempting to unlock his phone and call police, the complainant reached across while still driving the vehicle, and attempted to grasp for the appellant’s phone and at his face, beard and arm. The appellant then hit her three times with his right arm “swinging around”. The appellant was unable to recall whether he hit her with his arm, his elbow or his hand, but said that he definitely hit the complainant’s nose. He also thought it possible that he had hit the complainant four times. The appellant estimated the force with which he hit the complainant as “a seven” out of ten.

22. The appellant said he called triple-zero around the time he hit the complainant. While talking to the operator, the appellant looked over and saw that the complainant’s nose appeared to be broken and that blood was coming from the bridge of her nose. The appellant described his reaction as “I was, like, ‘Oh, shit’”.

The triple-zero calls

23. The first triple-zero call was placed by the appellant’s brother. During the call, he told the operator that he had received a text message from the appellant asking him to call the police due to a domestic disturbance with the complainant at the residence.

24. The second triple-zero call was placed by the appellant while he was in the vehicle with the complainant. In that call, the appellant told the operator that the complainant was driving him around and said “… I’ve hit her. I’ve [hit] her a couple of times”. He said, “…she won’t stop driving the car and let me out”. The complainant interjected several times, saying “He’s abusing me” and “He’s been threatening my life”. The complainant said she was refusing to pull over because “…he’s been threatening me”. The operator directed them to drive to Belconnen Police Station.

25. When asked by the operator why he had hit the complainant, the appellant said she had tried to take his phone and that “I was threatening her”. The complainant interjected to say the appellant had hit her “three times”. The appellant agreed and said the complainant had been hit in the face and the nose, and her nose was bleeding. The appellant was asked by the operator whether this was the first time he had assaulted the complainant, and the appellant said no.

26. The final portion of the triple-zero call records the appellant and the complainant arriving at Belconnen Police Station. The complainant told the operator and the appellant that she did not want to leave the vehicle or enter the police station, saying “[indistinct] going to let him get away with he was just threatening [indistinct] I’ve dropped him off here as he wishes, which he always get [indistinct]”. The complainant said she was not coming in “because I am actually scared of him and I’m not being in the same place as him. I’m going to the hospital”. The appellant then entered the police station without the complainant, and the call was ended. Evidence of the defence

27. The appellant tendered evidence in defence, by agreement with the prosecution, that he did not have any prior criminal convictions.

Principles on appeal

28. The Supreme Court has jurisdiction to hear and determine appeals from conviction in the Magistrates Court under ss 207 and 208 of the Magistrates Court Act 1930 (ACT). This is an appeal pursuant to s 208(1)(b).

29. The appellate court must have regard to the following matters set out in s 214: 214 Appeals in cases other than civil cases (1) This section applies to an appeal mentioned in section 208 (Appeals to which div 3.10.2 applies). (2) In an appeal to which this section applies, the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact. (3) In an appeal to which this section applies, the Supreme Court must— (a) if it considers it necessary or expedient to do so in the interests of justice— (i) order the production of a document or anything else that was an exhibit in, or was otherwise connected with, the proceeding out of which the appeal arose and that appears to it to be necessary to produce for deciding the appeal; and (ii) order any person who was, or would have been if the person had been called, a compellable witness in the proceeding to attend for examination before the Supreme Court; and (iii) receive the evidence, if tendered, of any witness; and (b) receive evidence with the consent of the parties to the appeal. (4) If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if— (a) it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and (b) the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.

30. Pursuant to s 218, the court’s powers on appeal include making orders it considers appropriate, confirming, reversing or varying the decision, or to give or refuse to give the judgment or order which is sought.

31. The nature of an appeal under s 214 is by way of rehearing. The court must undertake a real review of the evidence and the decision of the Magistrates Court, while being mindful of the advantages enjoyed by the trier of fact at first instance: Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 at [13] (Mossop, Baker and Abraham JJ). This includes having regard to the natural limitations of proceedings on the record, including the Chief Magistrate’s advantage in hearing and seeing witnesses give evidence, which may convey a “feeling” of the case incapable of being disclosed by a review of the transcript: R v ZT at [9]. An appellant generally may only succeed by demonstrating material legal, factual or discretionary error in the decision below: Alexander v Bakes at [18].

32. Where there is a complaint that a verdict is unreasonable, the court must consider whether, upon the whole of the evidence, it was open to the court below to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen (1994) 181 CLR 487 at 492-3 (Mason CJ, Deane, Deane, Dawson and Toohey JJ); Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 at [37] (Baker J). However, it is also sufficient for an appellant to succeed on the ground of an unreasonable verdict by demonstrating a material legal, factual or discretionary error: Alexander v Bakes at [18].

Grounds of appeal

33. A notice of appeal against the finding of guilt was filed on 4 August 2025, containing 10 grounds of appeal. The grounds of appeal are: (a) The learned Magistrate mistook the defence case. (b) The learned Magistrate erred in finding that the appellant broke the complainant’s nose. (c) The learned Magistrate erred in finding that the appellant’s behaviour was manipulative. (d) The learned Magistrate erred in finding that the appellant did not believe he was being unlawfully confined. (e) The learned Magistrate erred in finding that the appellant was not unlawfully confined or in failing to find that the appellant was unlawfully confined. (f) The learned Magistrate erred when applying the test for self-defence in Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, including, without limitation: (i) Finding that the prosecution proved beyond a reasonable doubt that the appellant did not genuinely believe that his conduct was necessary; and (ii) Finding that the prosecution proved beyond a reasonable doubt that the force used was not reasonable in the circumstances as the appellant perceived them. (g) The learned Magistrate failed to correctly apply the Murray Direction. (h) The learned Magistrate failed to correctly apply the “Good Character” Direction. (i) The learned Magistrate failed to correctly apply the Liberato Direction. (j) The learned Magistrate’s decision was unreasonable and cannot be supported having regard to the evidence, or the learned Magistrate’s factual and/or legal errors warrant that this Court rehear the matter and enter a verdict of not guilty on charge charge [sic] CC 2024/4664 (aggravated assault occasioning actual bodily harm).

34. The appellant submits that the errors identified in each ground are consequent on each other and flow logically from the initial complaints that the Chief Magistrate mistook the defence case and made erroneous factual findings (grounds (a)-(e)). That is, the appellant says that, in mistaking the defence case and making errors of fact, the Chief Magistrate failed to apply the relevant directions correctly and consequently failed to apply the test for self-defence correctly, resulting in an unreasonable verdict being reached.

35. Grounds (a), (d), (e) and (f) are complaints relating to the Chief Magistrate’s finding that the appellant’s account did not sufficiently raise the possibility that he acted in self-defence, and are dealt with compendiously.

36. Grounds (g), (h) and (i) are various complaints about the directions the Chief Magistrate gave herself.

37. The remaining grounds (b) and (c) comprise complaints against other factual findings made by the Chief Magistrate.

38. Grounds (a) to (i) are properly characterised as particulars of ground (j), that the verdict is unreasonable.

Grounds (a), (d), (e) and (f): Availability of self-defence

39. The Chief Magistrate found the appellant had not sufficiently demonstrated the possibility that he acted in self-defence, either because he did not genuinely believe his conduct was necessary to defend himself, or if he did hold a genuine belief, his conduct was not a reasonable response to the circumstances as perceived by him.

40. The Chief Magistrate’s reasons in relation to the issue of self-defence were as follows: I assessed [the appellant’s] conduct towards [the complainant] as manipulative. The threat of police intervention being part of that manipulation. Whilst he made, in his conversation with Constable Innes, a single vague reference to being kidnapped, this appeared almost flippant. I am satisfied that this was not a serious held perception. The notion that [the appellant] was being unlawfully confined, in my assessment, was a specious one. The evidence before me satisfies me beyond a reasonable doubt that this was not a genuinely held belief. I am also persuaded to the requisite standard that [the appellant] did not hit [the complainant] to avoid any perceived harmful effect of being confined in a motor vehicle by her. He was not happy about being driven around. He was tired. He wanted to go home to his bed, and he was getting angry. He wanted to use his phone to call police. Whilst [the appellant] clearly made physical contact with [the complainant] in attempting to grab his phone, even on [the appellant’s] own evidence, he did not strike out at her to prevent physical harm to himself, but rather to protect his access to the phone. He expressed no concern for his safety in any of his recounting of the incident. [The appellant] was frustrated that [the complainant] attempted to take his phone from him to prevent him calling police. In my assessment he wanted to call the police to manipulate [the complainant] into doing what he wanted. In his anger, when this was being [thwarted], he lashed out and struck her. He held no genuine belief that he needed to strike [the complainant] for his own safety. In the event that I am wrong in my assessment as to [the appellant’s] lack of a genuine belief, that it was necessary to do what he did in order to protect himself, I am nonetheless satisfied, beyond reasonable doubt, that his conduct was not a reasonable response to the circumstance as perceived by him. He was not at an immediate risk of harm from [the complainant]. In protecting access to his phone, his response was excessive.

41. The common law test for self-defence was set out by the High Court in Zecevic at 661 (Wilson, Dawson and Toohey JJ) and requires the trier of fact to consider “whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he [or she] did”. This requires a finding that the accused subjectively believed at the time of the conduct that what was done was necessary and that objectively, the belief was based on reasonable grounds: DPP v Myers (No 3) [2025] ACTSC 514 at [85] (Slattery AJ). There is no rule that the accused must retreat before attempting to defend themselves, although the possibility of retreat may be relevant to the belief of the accused or the reasonableness of the accused’s belief: Zecevic at 663-4.

42. The accused bears an evidentiary onus to demonstrate an inference may be drawn from the evidence that there is a reasonable possibility that the accused acted in self-defence: R v Rao [2008] ACTSC 17; 2 ACTLR 1 at [90] (Gray J). If a prima facie case of self-defence is raised, the onus is then on the prosecution to disprove self-defence beyond reasonable doubt.

43. In Palmer v The Queen [1971] AC 814 at 832, Lord Morris said of the subjective element of self-defence: If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.

44. It was accepted by the Chief Magistrate, relying on the decision of Rawsthorne v Wilson [2018] ACTSC 342; 342 FLR 134, that self-defence may be available in respect of unlawful confinement, by the use of reasonable force to achieve freedom from confinement where a risk of harm is perceived.

Appellant’s submissions

45. The crux of the appellant’s submissions relevant to these grounds relates to the Chief Magistrate’s finding that the appellant was never unlawfully confined by the complainant. The appellant submits that the evidence raised a reasonable possibility that he believed it was necessary to act as he did because he perceived he was being unlawfully confined by the complainant, and that there were reasonable grounds for that belief because he was in fact unlawfully confined.

46. In that regard, the case put by the appellant is: (a) He was unlawfully confined in a moving, accelerating vehicle, in circumstances where he had expressed a desire to leave. (b) He was highly vulnerable and had few options available to him while he was in the vehicle. (c) He attempted to take the only reasonable course not involving the application of force (calling the police), when the complainant responded physically and violently while continuing to drive the vehicle, putting both occupants of the vehicle in danger.

47. The appellant submits that the Chief Magistrate mistook the defence case, by treating the appellant’s conduct as flippant and manipulative, rather than as defensive action taken in a situation of unlawful confinement. In particular, he says that her Honour minimised or did not consider the danger involved in the driver of a vehicle distractedly clawing at a passenger while driving, albeit slowly. The appellant contends that her Honour conflated his contention that he thought he was being kidnapped with her finding that he was never unlawfully confined.

48. The appellant submits that the Chief Magistrate erred in finding that he did not believe he was being unlawfully confined. By his account, he expressed a desire to be released from the vehicle multiple times, in circumstances where the situation was escalating, the complainant was refusing to allow him to leave and was accelerating the vehicle. The appellant contends there is an inconsistency between her Honour’s findings that his conduct was manipulative and that his reference to being kidnapped was flippant, and therefore not a seriously held belief, compared with her Honour’s later acceptance of his account that he was unhappy being driven around, was getting angry and wanted to go home. The appellant submits that his anger was not directed “at large” towards the complainant and was instead prompted by the complainant refusing to release him from the vehicle.

49. The Chief Magistrate also erred in finding he was not in fact being unlawfully confined, because her Honour elevated unlawful confinement to a standard beyond ordinary notions of consent. The Chief Magistrate’s implicit view was that it was not enough that the appellant felt and expressed his lack of consent to being confined to the vehicle, or that he attempted to effect his release by calling the police. The appellant contends that the Chief Magistrate erroneously required him to “suffer to a higher degree, or to feel something different” before finding his lack of consent amounted to unlawful confinement.

50. The appellant says the Chief Magistrate misapplied the test for self-defence, by failing to assess his conduct against the entirety of the circumstances. He draws attention to the relative posture and close proximity between himself and the complainant in a moving vehicle, characterising his response (by making sweeping arm motions) as an instinctive, proportionate response directed towards preventing the complainant from interfering with his attempts to leave the car. He submits that the evidence of the force of his strike has no bearing on the reasonableness of his conduct as self-defence, besides supplying the conclusion that he was “forcefully repelling” the complainant. It was also not necessary for him to express fear in relation to the circumstances. An apprehension of danger was sufficiently raised by the objective circumstances.

51. The appellant says there was a corresponding paucity of detail in the complainant’s account against which to weigh his account of self-defence, and that the complainant had complete control over him in the circumstances. The evidentiary onus on the appellant to raise self-defence is low and was clearly satisfied by his evidence and the entirety of the circumstances.

52. The appellant submits that, in the circumstances, it was not open to the Chief Magistrate to find the appellant did not believe and was not in fact being unlawfully confined, and that it was not open to her Honour to find that the possibility of self-defence was not raised. He says the court should conclude that the account put forward by him as to the circumstances is more readily acceptable than that put forward by the prosecution.

Respondent’s submissions

53. The respondent submits that it was open to the Chief Magistrate to reject the appellant’s claim of self-defence. Her Honour understood the case put forward by the appellant, and chose to reject the defence case after reviewing the evidence. That her Honour chose to reject the defence case does not equate to mistaking the defence. The appellant’s submissions in support of self-defence were not founded in evidence and ran contrary to his own account.

54. The appellant’s own account excluded the possibility of self-defence. His account to police was that he struck the complainant out of anger because she was trying to grab his phone. The appellant did not explicitly or implicitly state that what he did was in self-defence. He said that he was “fine” with driving around until he became angry and wanted to go home. The appellant’s expressed desire to leave the vehicle, in context, did not rise to the level of a belief that he was being confined to the point that he needed to act to protect himself. The appellant’s actions occurred in the context of attempting to use his phone so he could call police, and were not consistent with a fear of harm or unlawful confinement.

55. The respondent says that a review of the recording of the appellant’s interview with police shows that the appellant adopted an “almost joking” tone when referring to being kidnapped. The appellant did not give any further account to support a belief that he was being kidnapped or unlawfully confined. The respondent notes the Chief Magistrate’s observation that the appellant at no stage indicated fear for his safety, or concern about what happened. Her Honour undertook a commonsense consideration of all the evidence and it was open to her to conclude on that basis that the first limb of the test for self-defence was not made out.

Consideration

56. Although s 42 of the Criminal Code Act 2002 (ACT), which deals with self-defence, is not an applied provision in relation to the subject offence, it is noteworthy that it identifies conduct that a person believes is necessary to prevent or end an unlawful imprisonment as conduct that will amount to self-defence. The common law position does not have the same clarity (see Rawsthorne at [76]-[80]). In Rawsthorne at [76], Penfold J extracted the following passage from the explanatory memorandum for the Criminal Code Bill 1994 (Cth), referring to the provision that is the source for s 42 of the ACT Criminal Code: The extension of the right to use force to situations where the purpose is to terminate the unlawful imprisonment of the accused or another is rarely invoked at common law and consequently the law is in an unsatisfactory state. The leading case Rowe v Hawkins (1858) 1 F&F 91; 175 ER 640 is draconian. Proposed subsection 10.4(2) extends the current provisions in the Griffith Codes, although it may be argued that subsection 31(3) of the WA Code may be broad enough to cover the situation if the expression ‘unlawful violence’ is wide enough to encompass the concept of unlawful imprisonment.

57. In the absence of any identified authority to the contrary, I have proceeded on the basis that unlawful confinement may be a relevant factor in a prosecution in which common law self-defence is raised. As the respondent readily acknowledged, it is not for the defendant to prove self-defence, but there must be evidence from which it can be said it is reasonably possible an offender was acting in defence of themselves before the defence can be raised (see Lancaster v Hyde [2016] ACTSC 50 at [88] (Refshauge J)). Once raised, the onus rests on the prosecution to prove beyond reasonable doubt that the offender was not acting in self-defence. In that regard, there are two elements to the test: (a) whether the offender held a genuine belief that it was necessary to act as they did in self-defence; and (b) whether that belief was held on reasonable grounds.

58. In Zecevic, Wilson, Dawson and Toohey JJ expressed the test in this way at 661: The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he [or she] did. If he [or she] had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he [or she] is entitled to an acquittal. Stated in that form, the question is one of general application and is not limited to cases of homicide.

59. The Chief Magistrate accepted that self-defence may be available in respect of unlawful confinement, and further, that a person may use reasonable force to achieve their freedom from such confinement where they perceive a risk of harm. Her Honour rejected the proposition that the appellant genuinely held a belief that he was unlawfully confined. Her Honour also rejected the proposition that he held a genuine belief that his actions were necessary to protect himself from harm. The Chief Magistrate assessed the appellant’s actions in seeking to involve the police as actions directed to manipulating the conflict with the complainant, as opposed to actions directed to achieving his release from the vehicle. As for his motivation in striking the complainant, the Chief Magistrate concluded that the appellant was driven by his desire to return home to bed and his increasing anger about the situation. The only evidence on the topic of confinement in the vehicle was that of the appellant. His evidence was to the effect that he had repeatedly requested that the complainant take him home and that she had, by her actions if not her words, declined to do so.

60. The distinction that is drawn in the Chief Magistrate’s reasons between a motivation to return home to bed and a motivation to be released from confinement in the vehicle is a fine one. If it is accepted that being confined in a vehicle as a passenger against one's desire constitutes an unlawful confinement, then it seems to me that an action that is motivated by a desire to leave the vehicle and go home is akin to an action motivated by a desire to end the unlawful confinement. Once it is accepted that the appellant remains in the vehicle against his will, what is at issue is not the motivation of the appellant for escaping the vehicle, be it to return to his bed or otherwise, but whether he believed on reasonable grounds that his actions were necessary to end his unlawful confinement. I am therefore not satisfied, in the circumstances of the appellant’s repeatedly expressed desire to be let out of the vehicle, that the evidence establishes beyond reasonable doubt that there was an absence of genuine belief in the appellant that his actions were necessary to end his confinement.

61. It is the second limb of the test that is problematic for the appellant. The Chief Magistrate was also satisfied beyond reasonable doubt that, viewed objectively, the appellant’s actions did not constitute “a reasonable response to the circumstances as perceived by him”. I agree. On the appellant’s own evidence, he struck the complainant at least twice, and probably three times, with force that he described as seven out of ten. He contends that this action was reasonable in circumstances where the complainant was grabbing and scratching at him to gain access to his phone, whilst at the same time, in control of the moving motor vehicle as its driver. The appellant submits that the circumstances were such as to present an immediate danger to him. That submission should be rejected as there is no evidence at all of imminent danger such as, for example, a reduced capacity in the complainant to control the motor vehicle. Even if that were so, to lash out with force at the face of a person in control of a moving motor vehicle in which the appellant was a passenger could not on any view be perceived as a reasonable action directed to preserving his own safety.

62. Accepting that in the heat of the moment the particular method of defence may not be carefully measured and managed, the defence is not made out if the response of an accused person goes beyond what they believed to be necessary to defend themselves (see Palmer at 832), or if, viewed objectively, there were no reasonable grounds for a belief on their part that the response was necessary in defence of themselves (Zecevic at 661). When viewing the evidence as a whole in addressing the latter question I note: (a) The evidence of the complainant, accepted by the Chief Magistrate, was that the appellant struck her with intent to cause her pain and to ensure police involvement. (b) The appellant conceded that he had become angry before hitting the complainant. (c) He had been threatening the complainant. (d) By his own admission he definitely struck her in the nose with force that he described as seven out of ten. (e) He hit her because he was trying to unlock his phone.

63. On considering the evidence as a whole, viewed objectively, there were no reasonable grounds for a belief on the part of the appellant that his response was necessary in self-defence. It was therefore open to the Chief Magistrate to conclude as she did that there was proof beyond reasonable doubt that the appellant was not acting in self-defence.

64. These grounds of appeal are not made out.

Grounds (g), (h) and (i): Application of directions

65. The appellant’s complaint in relation to the directions applied by the Chief Magistrate pertains to their application to the facts, rather than the terms of the directions given. The appellant submits the error in applying the directions stemmed from her Honour’s characterisation of his case. Her Honour directed herself in accordance with the decision in R v Murray (1987) 11 NSWLR 12, in accordance with the decision in Liberato v The Queen (1985) 159 CLR 507, and made a direction as to good character evidence, albeit adopting a “cautious approach” to the weight to be given to the appellant’s good character.

66. In relation to the Murray direction, the appellant is critical of her Honour’s subsequent assessment of the complainant’s evidence: The complainant … presented in both her conversation with PC McLucas and whilst giving her evidence, as defeated and resigning. She corroborated that she and [the appellant] were separating, that they had argued about her attending hospital that night. In speaking with police constable McLucas, she expressed concern over the efficacy of making a complaint and the possible repercussions for her of doing so. She had little confidence in her recollection, even immediately after the incident. However, rather than undermining her credibility, she presented as reticent, but honest, and somewhat understating in relating what she did recollect. In so far as she was able to give detail of what had occurred, I found her clear recollection in the conversation with PC McLucas, that she was struck twice in the face, that she did not see the strikes coming, and that one of them caused the injury to her nose compelling. This was consistent with the complaint made immediately in the 000 call to police from the car. She was concerned about the effect of the broken nose on her breathing and intended to seek medical treatment, although she would not accept assistance to do so. After considerable reassurance by police constable McLucas, [the complainant] agreed to have photographs taken of her injury and to provide consent to the police obtaining her medical records. She was in no way vindictive in her presentation. In court, [the complainant] claimed to have little to no independent recollection of the incident. I could not discern if she genuinely had no recollection or was not entirely forthcoming for some other unidentifiable reason. Significantly however, she did not recant from the complaint she made on the night in the 000 call and to police constable McLucas. I found her initial complaint compelling.

67. In relation to the good character direction, the appellant submits that her Honour gave evidence of his good character insufficient weight. Her Honour’s direction was: The defendant is a person without criminal antecedence. This is the extent of the evidence of good character put before the court. This may be taken into account when assessing the likelihood of him committing a criminal offence whilst recognising that for every person with a criminal history there is necessarily a first offence. His lack of criminal antecedence may also be considered in assessing the credibility of his account. I requested reference to any authority as to the weight to be attached to good character evidence in the context of alleged intimate partner offending. The parties were unable to assist. I conclude that a cautious approach may be taken in assessing the weight to be attached to the mere absence of prior criminal conviction in the context of family violence, and particularly intimate partner violence, intimate partner offending rather, noting that such conduct may not as readily come to light as more public forms of criminal offending. I have come to this conclusion, having regard to the decision of Mossop J, in [Johnson v Hansen [2024] ACTSC 353], particularly at paragraph 62, and having regard to the decision his Honour referred to in that case of [Slattery v R [2023] NSWCCA 117], at paragraph 91. The latter case, of course, did not deal with the intimate partner violence, but [shed] some light on the approach to be taken to offending in a similar context.

68. I note that the giving of a direction as to the use to be made of character evidence is discretionary and there is no obligation to make a direction in those terms: Melbourne v The Queen [1999] HCA 32; 198 CLR 1 at [30] (McHugh J).

Appellant’s submissions

69. As to ground (g) the appellant complains that the Chief Magistrate misapplied the Murray direction by treating portions of the complainant’s statements recorded on body-worn camera as “compelling”. The appellant submits that the evidence given by the complainant was highly confused, highly generalised, unsupported by specificity and bore little relevance to the case at hand. The Chief Magistrate’s finding that the complainant was not “vindictive” in her presentation did not bear any relevance to whether the complainant was a credible and reliable witness. In circumstances where the reliability or credibility of the complainant could not be tested as a result of her inability or unwillingness to recall details at trial, the appellant contends her Honour’s findings had the effect of “reversing the onus of proof”. He submits that it is plausible that the complainant was telling the truth in her representations to police as she perceived it at the time, while not mentioning the circumstances relevant to the defence in this case, such as unlawfully confining the appellant.

70. On ground (h), the appellant submits that her Honour was wrong to adopt a cautious approach to good character evidence, and that good character evidence must hold the weight appropriate to each case, turning on its own facts. His good character had significant operation in the present case, relative to the factual dispute over whether the appellant’s conduct was based on an honest apprehension of danger and was not excessive, and whether he was acting in a manipulative, disingenuous way. Her Honour’s observations about family violence were not relevant in the individual, specific circumstances of the case. The good character evidence was also relevant to whether the account from his record of interview could be readily accepted as credible. The appellant submits that the good character direction was not accurately given and did not comply with the principles set out in Melbourne v The Queen.

71. In relation to ground (i), the appellant submits that her Honour misapplied the Liberato direction by mistaking the defence case. In those circumstances, her Honour erred in rejecting the appellant’s account or finding it insufficiently exculpatory. Notwithstanding her ultimate finding, her Honour appeared inclined to accept the appellant’s version of events as believable or plausible.

Respondent’s submissions

72. On ground (g), the respondent submits that there was no error by the Chief Magistrate in her treatment of the complainant’s evidence. Her Honour gave a Murray direction to the effect that the prosecution case was largely founded upon the complainant’s evidence, and that the complainant’s evidence needed to be scrutinised closely. Her Honour correctly followed the direction in weighing up the complainant’s account. The complainant’s evidence was corroborated by the appellant’s own account in circumstances where she made an immediate complaint and demonstrated clear evidence of injury. The respondent submits the complainant’s account was brief but clear, and that at trial she did not attempt to recant on her previous allegations or suggest that what she told police was untruthful. It was not open to her Honour to have regard to speculation about topics the complainant might have known about but on which she chose not to give evidence.

73. On ground (h), the respondent observes that the appellant called limited good character evidence but received the benefit of a full good character direction. A lack of prior convictions does not provide any meaningful indication about the truthfulness or honesty of a person, and is therefore not relevant to assessing credibility. The good character evidence was irrelevant to the case at hand because the appellant did not dispute that he committed the conduct making up the offence, and the evidence did not go towards making the claim of self-defence any more or less plausible.

74. The respondent submits there is no error in the cautious approach adopted by her Honour, with reference to Johnson v Hansen [2024] ACTSC 353, and points to the appellant’s admission in the recorded triple-zero call that it was not the first time he had assaulted the complainant.

75. The respondent submits that, in regard to the Liberato direction, the appellant gave no conflicting or exculpatory account which required her Honour to positively reject his evidence, and that in this case the appellant’s own account convicted him.

Consideration

76. The essence of the appellant’s complaint concerning the Murray direction is that to the extent the Chief Magistrate took account of the complainant’s credibility and reliability as material, she did so in error. Murray is authority for the proposition that where the prosecution case is largely based upon a single witness, the trier of fact should carefully consider the evidence of that witness before acting upon it. In this instance, while largely basing its case on the complainant’s evidence, the prosecution also relied upon the evidence of the appellant, which contained admissions that were corroborative of the prosecution case. It was clearly open to the Chief Magistrate to accept the evidence of the complainant as she did, and she set out her reasons for doing so.

77. Turning to ground (h) and the good character evidence, it is germane to first note the insignificant role that good character evidence played in the trial. It was relied upon by the appellant to do no more than highlight the absence of a record of prior conviction.

78. In Johnson v Hansen, a matter involving alleged instances of family violence and indecent assault, Mossop J stated at [62]: … it would be clearly open to a finder of fact in assessing the significance of any such character evidence to take into account the dysfunctional nature of the relationship between the appellant and the complainant and the fact that the character evidence was, for the most part, evidence of conduct outside that relationship. It would also be open to the finder of fact to take into account that it is a not uncommon feature of family violence offending that there is a duality of behaviour, which includes behaving in a manner consistent with good character in circumstances where the behaviour will be observed by persons outside the relationship, and family violence offending where the behaviour is not observed (compare the different but related observation in Slattery v R [2023] NSWCCA 117 at [91]).

79. In Slattery v The King [2023] NSWCCA 117; 308 A Crim R 196 at [91], Bell CJ observed (in the context of child sexual assault offences): The extent to which evidence of good character will assist a person accused of child sexual assault offences of the kind alleged in this case may be legitimately open to question. While the forensic value of good character evidence will inevitably turn on the nature and importance of that evidence in all the circumstances of the case, it may be accepted that there is now greater community recognition that persons who are otherwise thought to be of good character may commit offences involving child sexual assault. (Citation omitted.)

80. As the respondent submits: The appellant gave no version of events which gave rise to a claim of self-defence and hence, the character evidence had no bearing on the truthfulness or reliability of any such account.

81. As to ground (i) and the Liberato direction, the appellant’s submission appears misconceived. The direction is required where there is a need to address a conflict between the evidence presented by the prosecution and the defence. It is a direction about the onus and standard of proof in a criminal proceeding, being matters about which the trier of fact must be directed clearly and appropriately. Reflecting on the factual elements to be proved in relation to the primary offence of which the appellant was convicted, and in relation to the defence of self-defence, there was no evidence proffered by the appellant that he asserts constituted exculpatory or conflicting evidence in respect of which a specific direction was required. There is: (a) No contest that the complainant was struck in the face by the appellant probably three times. (b) No dispute that the parties were in a domestic relationship at the time, creating the element of aggravation. (c) Acceptance on the evidence that the appellant remained in the vehicle controlled by the complainant at a time after he had expressed a desire to get out of the vehicle. (d) General acceptance that the complainant continued to drive around after a time at which he had requested to get out of the vehicle.

82. At the heart of the appellant’s submission on Liberato appears to be the proposition that the Chief Magistrate misunderstood the self-defence case because she did not appreciate that confinement in the vehicle was of itself a basis for a self-defence finding. Had she appreciated that matter she would have been required to direct herself as to whether the appellant’s version of events raised the possibility that he believed upon reasonable grounds that it was necessary in self-defence to do what he did, and that there were objectively reasonable grounds for that belief. It seems to me that is precisely what the Chief Magistrate did when she observed: If I believe the defence version of events, in this case as given in person or in interview, and it is inconsistent with guilt, then obviously I must dismiss the charges. If I find it difficult to accept the defendant’s version but think it might be true, then I must dismiss the charge. Even if I do not believe the defendant’s version of events, I must still be satisfied on the evidence of his guilty [sic] beyond reasonable doubt in order to convict.

83. And further in relation to self-defence: I am satisfied that it is open to a person to use reasonable force to prevent or stop harm being done to them. That response must be objectively reasonable, having regard to the persons [sic] perception of the circumstances. In relevant circumstances, self-defence may be available in respect to unlawful confinement. It is open to a person to use reasonable force to achieve their freedom from an unlawful confinement where they perceive a risk of harm.

84. These grounds of appeal are not made out.

Grounds (b) and (c): Availability of other factual findings

85. The remaining two grounds relate to whether the Chief Magistrate was in error to find that the appellant broke the complainant’s nose and that the appellant’s behaviour was manipulative, respectively.

Appellant’s submissions

86. The appellant’s submissions on ground (b) are brief and to the effect that the Chief Magistrate was wrong to conclude the complainant’s nose was broken, in the absence of medical evidence to that effect. He submits that the Chief Magistrate’s finding is indicative of a “somewhat unfounded or shorthand approach to factual determinations … which is redolent of error”.

87. In relation to ground (c), the appellant submits that the Chief Magistrate’s finding that he wanted to manipulate the complainant was not supported by any evidence, beyond the appellant’s own characterisation that he wanted to be released from the vehicle and that he may have considered that calling the police would cause the complainant to let him leave. The appellant contends there is no evidence that the appellant wanted to achieve anything other than or beyond his release, and that her Honour’s characterisation of his actions as manipulative is therefore unfounded. He says that the account he advances – that he was repelling the complainant’s attempts to interfere with the only means available to him to extricate himself from a dangerous situation – is more plausible than the construction that he was using his phone in a manipulative manner and then became angry. No plausible opposing explanation was put by the prosecution in relation to the appellant’s conduct.

88. The appellant submits the basis for the Chief Magistrate’s finding that the appellant was acting manipulatively was her observation that the appellant “expressed no concern for his safety in any of his recounting of the incident”. He says that proposition should not have been accepted in circumstances where the issue was never put directly to him, where he gave a clear, frank and direct account about what occurred without any evident malice or anger towards the complainant, and considering the varied reactions people may have to shock and trauma. The Chief Magistrate thereby incorrectly reversed the onus of proof in relation to self-defence, in requiring the appellant to establish in his record of interview what danger he perceived and how his response was proportionate to that danger. There was no onus on the appellant to provide a full account of self-defence necessary to meet his evidentiary onus, in circumstances where he was in shock.

Respondent’s submissions

89. The respondent submits that there was no dispute at trial that the appellant struck the complainant and broke her nose. In circumstances where the salient dispute was whether the appellant struck and injured the complainant in self-defence, it was appropriate for the Chief Magistrate to deal with the complainant’s injuries in a brief manner.

90. The respondent further submits that the Chief Magistrate did not exclude self-defence on the basis of her finding that the appellant was being manipulative, but rather on the basis there was no evidence of self-defence. Her Honour’s impression that the appellant’s behaviour was manipulative was open on the evidence and corroborated by the appellant’s own account. Relevantly, she refers to the appellant’s account that he had called police on the complainant several times previously, and that he became angry while in the vehicle and decided that he would call the police. It was open to the Chief Magistrate to infer that the appellant called police to get the complainant into trouble as he had threatened earlier.

Consideration

91. As to ground (b) I am satisfied that it was open to the Chief Magistrate to find as she did that the appellant had broken the complainant's nose. The appellant’s own evidence was to that effect. Whether the complainant's nose was broken or not, the elements of the primary offence are made out where it is established that the assault occasioned actual bodily harm. Both the assault and the occasion of actual bodily harm are admitted. In the circumstances, nothing turns on whether or not the appellant's nose was in fact broken.

92. There is nothing arising from the Chief Magistrate’s reasoning to indicate that her observation concerning the appellant’s manipulative behaviour was of significant moment. That finding was open on the evidence and ultimately part of her Honour’s assessment on the whole of the evidence as to the belief the appellant had at the time. As the respondent contends, self-defence was not excluded on the basis that the appellant was manipulative. It was excluded because the Chief Magistrate was not satisfied on the evidence as a whole that it applied.

93. These grounds are not made out.

Ground (j) and conclusion

94. Ground (j) is not in the nature of a separate ground, but rather a ground that is reliant on success in one or more of the other grounds in establishing that the Chief Magistrate’s decision was unreasonable and not supported by the evidence. For the reasons given above this ground is not made out.

Orders

95. I make the following order: (1) The appeal is dismissed.

I certify that the preceding ninety-five [95] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date: