Criminal Law - General matters - Criminal liability and capacity - Defence matters - Self-defence and other forms of self-defence - Generally - Onus of proof.

Walsh (1991) 60 A Crim R 419, applied.

Appeal and New Trial - Appeal - Practice and procedure - Tasmania - Powers of court - New trial.

Bedelph v Weedon [1963] Tas SR 69; Burston v Brooks A91/1996, considered.

Judgment Number: [2001] TASSC 148

1 The applicant appeals against his conviction on two charges of assault, contrary to the Police Offences Act 1935, s35(1). The charges relate to an incident which occurred outside the Great Lake Hotel on the afternoon of 16 January 2000, when it is alleged that the applicant struck each of the complainants, Anthony Hayes and Timothy Neil, in the face with a revolver.

2 It was not disputed that the applicant struck the complainants. The issue at trial was whether the prosecution had established beyond reasonable doubt that the blows were unlawful, that is, that the applicant was not acting in self-defence.

3 In summary, the evidence established that on the day in question the complainants were in an intoxicated state when they arrived at the Great Lake Hotel. After obtaining one or two drinks, Mr Neil was refused further service. This led to the complainants becoming involved in an altercation outside the hotel in the course of which they pushed, shoved and shouted at each other. Apparently, Mr Hayes was endeavouring to persuade Mr Neil not to drive his motor vehicle. The applicant, who was in a nearby store, had his attention drawn to the altercation. At the time the applicant was a police officer. Although on duty, the applicant was not wearing his uniform or regulation police equipment such as a Glock pistol, baton, handcuffs and capsicum spray. The applicant was wearing his personal 357 magnum revolver.

4 The applicant's evidence was that he approached the complainants to quieten them down. He said they were aggressively drunk and shouting and abusing each other. He identified himself to them as a police officer and enquired what was going on. After an exchange which concluded with the applicant warning the complainants that if they did not desist they would be arrested, they turned on the applicant and threatened and abused him. He told them they were arrested for fighting and exposed his revolver to them. This did not deter them and the applicant said it was obvious they were about to have a go at him. He pulled his revolver from its holster and, as one of the complainants went for him, the applicant hit that complainant with the revolver. Thereupon, the other complainant grappled with the applicant, and the applicant struck that complainant with the revolver. Each complainant fell to the ground when struck. Between the striking of the two blows, the pistol accidentally discharged, injuring one of the complainants. That injury was not the subject of a charge. The applicant said he acted as he did as he thought he was going to get a good hiding. His evidence as to this was, to an extent, corroborated by other witnesses. Mr Darren Walker, a witness with whose evidence the learned magistrate said he was impressed, gave evidence that the complainants were moving towards the applicant when he struck them.

5 In the course of announcing his reasons for decision, the learned magistrate dealt specifically with the issue of self-defence, and referred to the decision of Walsh (1991) 60 A Crim R 419 at 423, where Slicer J said:

"On the evidence of the prosecution and the defence the jury were obliged to consider the provisions of s46 of the Code. That section provides:

'A person is justified in using, in the defence of himself ... such force as, in the circumstances as he believes them to be, it is reasonable to use.'

It contains two requirements, the first being the subjective belief of the person involved and the second the determination by the jury as to whether, given the belief of the person, it was reasonable to use the actual force used.

... The test is a subjective one, being whether the accused really believed there was a situation requiring the use of force in self-defence. Thus the jury is required to place themselves in the position of an accused and ascertain his belief as to the element of danger. The question is whether he genuinely and honestly believed that force was necessary. As such he may be mistaken but the test is genuineness of belief not reasonableness. ...

The second requirement of s46 is whether a reasonable person would consider the force actually used was reasonable. As part of its process the jury would take the belief of the offender (assuming they found such a belief to be genuinely held) and test the reasonableness of the force actually used on the basis of the belief."

6 The learned magistrate, having correctly identified the two elements of the issue of self-defence, as to the first element, the subjective belief of the applicant, the learned magistrate said he was satisfied that the applicant held a genuine, honest belief that force was necessary in the situation. The learned magistrate went on to say:

"However, turning to the second limb, the defendant was asked by Inspector Wilde, taking into account that these two people were basically drunk and not armed, and it was put to the defendant as to whether the force he used was excessive. I've given this matter anxious consideration and I think the force used by the defendant was excessive in the circumstances. I'm not satisfied to the requisite standard that the complainants were showing the aggression towards the defendant that the defendant said that they did. I'm not satisfied that the defendant could not have resorted to other means to quieten this situation down. I think to hit these two men with a revolver, which the evidence indicates the type of weapon this was, and using it as the defendant said was a club - as a club, it was excessive. The evidence indicates that each of the complainants went straight to the ground instantaneously on being hit, the blows were quite firm blows. In my view that force was excessive, neither of those two persons were armed, the defendant could have used other means in my view. Each count is proved."

7 It is apparent from this passage that the learned magistrate erred in the following way in his consideration of the reasonableness of the force used:

(1) He should have considered the reasonableness of the force in the light of the circumstances as the applicant believed them to be. The learned magistrate did not do so. In explaining his conclusion that the force used by the applicant was excessive in the circumstances, the learned magistrate said, "I'm not satisfied to the requisite standard that the complainants were showing the aggression towards the defendant that the defendant said that they did". This is an objective determination about the aggression being shown by the complainants. Whilst the learned magistrate's objective evaluation of the complainants' aggression was an appropriate matter for the learned magistrate to pay regard to in the course of his assessment of what the applicant's genuine belief was about that aggression, the learned magistrate did not use his evaluation in that way. He reached a conclusion about the reasonableness of the force used on the basis of his objective evaluation of the aggression manifested by the complainants when that conclusion should have been drawn on the basis of the applicant's belief in that regard.

(2) The learned magistrate approached the issue of the reasonableness of the force used by the applicant as if the applicant bore an onus referable to that issue. This is demonstrated by the learned magistrate's findings that he was "not satisfied to the requisite standard that the complainants were showing the aggression towards the defendant that the defendant said that they did", and that he was "not satisfied that the defendant could not have resorted to other means to quieten this situation down". The applicant bore no onus in relation to either of these matters. It was not necessary for the applicant to establish to any requisite standard that the complainants were showing aggression towards him as he described. Upon evidence being given which raised the issue of self-defence, the onus was on the prosecution to establish beyond reasonable doubt that self-defence did not justify the blows struck by the applicant. The applicant bore no onus in relation to this or any other issue. In making the findings referred to, the learned magistrate reversed the onus of proof.

8 By reason of these errors, the appeal should be upheld. Counsel for the respondent does not contend otherwise. Whilst counsel are in agreement that the appeal should be allowed, this is as far as their consensus goes.

9 Counsel for the applicant submits that I should dismiss the complaint. I am unpersuaded that an acquittal was the only conclusion reasonably open to the learned magistrate on the evidence. This is not a case where it can be said it would be unjust to order a rehearing because it would give a prosecutor, who had conducted a trial in an inappropriate manner, the opportunity to conduct a retrial quite differently (Burston v Brooks A91/1996). I will not dismiss the complaint.

10 Counsel for the respondent submits that I should refer the matter back to the learned magistrate with a direction that he determine the matter in accordance with the law. I have real concerns about taking this course. If, upon reconsidering the evidence in the light of this decision the learned magistrate convicted the applicant, it is inevitable that the applicant would be concerned that the learned magistrate's reasoning process had been tainted by the conclusion he expressed in the decision quashed by this appeal. It is because of this concern that counsel for the applicant opposes this course. Some support for the need to recognise a concern of this nature is to be found in the approach taken by the Full Court to supplementary reasons for decision provided by justices subsequent to an appeal. They are given little weight, as to give weight to them would give the appearance of injustice (Bedelph v Weedon [1963] Tas SR 69 at 76). In my view, the appropriate course is to quash the applicant's conviction and sentence, and order that the complaint be retried by another Magistrate.