Lukatela v Apostoloff [2009] ACTSC 167

Supreme Court of the ACT|2009-12-17|Before: Penfold J

1. Joanna Apostoloff was charged with one offence of administering an injurious substance with intent to cause pain and discomfort under subs 28(2) of the Crimes Act 1900 (ACT). On 3 December 2007 she appeared in the Magistrates Court, where the Magistrate found the offence proved, but did not record a conviction. The Director of Public Prosecutions (DPP) has appealed against the Magistrate's failure to record a conviction. Ms Apostoloff has cross-appealed against the finding of guilt, and that matter is to be resolved before the DPP's appeal is heard.

2. At the time the offence was committed, Ms Apostoloff was a member of the Australian Federal Police (AFP), working in the regional watch-house at the City Police Station in Canberra.

4. The incident was captured on CCTV; it is Ms Apostoloff's spraying of Mr Helmhout that constitutes the offence charged.

5. Ms Apostoloff pleaded not guilty to the charge, and on 3 December 2007 a contested hearing was held in the Magistrates Court. Ms Apostoloff consented to the jurisdiction of the Magistrates Court.

6. At the end of the hearing, the Magistrate found the offence proved, but under s 17 of the Crimes (Sentencing) Act 2005 (ACT) dismissed the charge because she was satisfied that it was "not appropriate to impose any further punishment", and required Ms Apostoloff to enter a good behaviour undertaking for 12 months with a self-surety of $1,000. The question whether s 17 permits a court both to dismiss a charge and to require a good behaviour undertaking may arise in the next stage of the appeal.

7. On 18 December 2007, the DPP appealed against the failure to record a conviction. Early in the hearing of that appeal before Higgins CJ, the Chief Justice queried whether the Magistrate had properly applied the test for self-defence in finding the offence proved originally. Ms Apostoloff sought and was granted leave to institute a cross-appeal against the finding of guilt. The matter was adjourned.

8. On 8 July 2008, pursuant to leave being granted by Higgins CJ, counsel for Ms Apostoloff lodged a notice of cross-appeal, submitting that in finding guilt, the Magistrate applied the wrong test in relation to self-defence.

9. When the matter came back before the Chief Justice, the DPP asked the Chief Justice to recuse himself from hearing the appeals because of his involvement in raising the possibility of an appeal based on self-defence. The Chief Justice decided to do so (Lukatela v Apostoloff [2009] ACTSC 11), and the appeal in due course came before me.

10. The initial hearing before me was confined to the matters raised in the cross-appeal, on the basis that those matters needed to be resolved before the DPP's appeal, if it was to proceed at all, could be considered.

11. The cross-appeal was against the Magistrate's finding of guilt. Counsel for Ms Apostoloff submitted that in finding the offence proved the Magistrate had not applied the proper test in relation to whether Ms Apostoloff had acted in self-defence. In submissions to the Magistrate, Ms Apostoloff's counsel had not expressly referred to self-defence, but the issue was raised in cross-examination of Ms Apostoloff and was canvassed by her Honour, who clearly understood that Ms Apostoloff was relying on self-defence to exclude a finding of guilt (extracts from her Honour's remarks are set out at [44] below).

12. The issues that arose in argument on the cross-appeal were as follows:

(a) Was there any evidence before the Magistrate that actually raised the possibility of self-defence?

(b) If there was, did her Honour apply the correct test in determining whether self-defence had been excluded?

13. In this case, the basic facts of the incident are not in dispute. The prosecutor's opening statement described it as follows:

Mr Helmhout had been arrested for a breach of a protection order and had been transported to the regional watch-house.

On arrival at the watch-house Mr Helmhout was taken from the police van and was escorted to the charge room for processing by the officer in charge of the watch-house, Sergeant John Birch. Also present in the watch-house were the defendant and Constable Andrew Smith. Mr Helmhout was directed to stand on the yellow line in front of the charge counter, a direction he initially complied with. The charge sergeant stood behind the watch-house charge counter and commenced to ask Mr Helmhout some questions regarding his welfare as required when lodging prisoners at the regional watch-house. The defendant and Constable Smith stood on either side of Mr Helmhout in front of the charge counter but they were not restraining him.

During this process Mr Helmhout was somewhat argumentative and appeared to be affected by intoxicating liquor. He walked away from the yellow line and moved in the direction of Constable Smith, who was standing to his left. Constable Smith asked Mr Helmhout to listen and to return to the yellow line. After a short hesitation Mr Helmhout returned to the yellow line. The sergeant continued to ask Mr Helmhout questions and Mr Helmhout continued to talk while this occurred. The sergeant then yelled at Mr Helmhout and told him to shut up. Mr Helmhout continued to talk while standing at the yellow line.

At this time the defendant was standing to the right of Mr Helmhout observing the interaction between Sergeant Birch and Mr Helmhout. About 1.04 am the sergeant took possession of a canister of the OC foam ... from behind the charge desk and deployed it to Mr Helmhout's face from a distance of approximately 1 metre.

In reaction to the spray, Mr Helmhout walked from the yellow line, turned to his right and walked to the rear of the charge room, wiping his eyes and face. The defendant walked to the charge counter and obtained a canister of OC foam. ... Mr Helmhout reached the rear of the charge room and turned to his left. The defendant walked towards Mr Helmhout and raised the canister of OC foam, in her right hand, pointing it in the direction of Mr Helmhout's face. She then lowered the canister and the following brief conversation took place. Constable Apostoloff said, "Are you going to listen now?". Mr Helmhout said, "Go on".

The defendant raised the canister of foam ... in her right hand and deployed it to Mr Helmhout's face, from a distance of approximately one metre. Mr Helmhout then turned away from the defendant, to his right, and walked to the rear of the charge room, wiping his face and eyes. Immediately before he did that, the canister was again raised towards him and lowered, not deployed. Mr Helmhout said, "Oh fuck, that's shit". The defendant placed the canister of OC foam on the charge counter. The sergeant later requested Mr Helmhout to be taken out for decontamination. He apparently refused decontamination and was subsequently escorted from the charge room.

14. The prosecutor's opening statement was consistent with the CCTV record (audio and visual), which was shown to the sentencing Magistrate and which I also watched in chambers during a break in the appeal hearing. As a description of the events shown on the CCTV record it was not contested by the defence, but the defence did challenge the interpretation of those events at certain points.

15. There is no doubt that Mr Helmhout was argumentative and somewhat uncooperative. The CCTV record shows that Sergeant Birch's initial spraying of Mr Helmhout caused him to turn away from the counter briefly but then to turn back towards Sergeant Birch. There was no indication that the first spray had a negative effect on Mr Helmhout's mood or demeanour. As he turned back towards the Sergeant, Ms Apostoloff asked Mr Helmhout whether he was going to listen now, and then sprayed him, almost immediately, as he waved her away and said "Go on" to Sergeant Birch. While Mr Helmhout's language was crude and offensive, it involved complaints rather than threats; his body language might be described as dismissive of the police officers but it was far from aggressive. My interpretation of the CCTV record is that Mr Helmhout did not at any point take any observable action that could have been interpreted as an attack, or as evincing an intention to make an attack, on Ms Apostoloff or any other police officer.

16. Ms Apostoloff gave evidence of the warning she received before Mr Helmhout arrived at the watch-house, and how she had responded:

Before Mr Helmhout came to the City Watch-House were you made aware of any of the circumstances that related to his arrest?---Yes, we - we were. We received a phone call saying that we had a male en route to the watch-house for domestic violence and that he'd been quite aggressive towards police.

Were you told anything about anything that he'd said to the arresting police at any stage?---Not by the phone. When he arrived in the sally port we would have - we were briefed by the arresting officers about what he'd said and what he'd done on the road.

Now, I want you to take your time and be very careful in what you say. Please tell her Honour, what were you told at the sally port in relation to Mr Helmhout?---I was told that he'd been brought in for a domestic violence incident against his ex-wife and that he'd been aggressive towards arresting police, that he'd threatened police with weapons and that he'd almost been sprayed on the road but he wasn't. Yes.

And did you have a conversation with Mr Helmhout when he was inside the vehicle in the sally port?---I did. I - I warned Mr Helmhout that if he showed any signs of aggression or if he was violent in any way that he would be sprayed and that everything in the watch-house was video and audio recorded.

17. She said that when Mr Helmhout arrived in the sally port:

He was quite aggressive and very argumentative . . . He continued to be argumentative and - he just wouldn't comply with our instructions. He didn't want to do what we were asking him to do.

18. After Sergeant Birch sprayed Mr Helmhout, Ms Apostoloff was, she told the Magistrate, concerned that the spraying was not effective:

I saw that the spray had actually hit Mr Helmhout in his lower part of the face and there was no immediate reaction.

...

I was concerned that after Sergeant Birch had sprayed Mr Helmhout that he'd already been non-compliant with our instructions, he'd also been fairly aggressive towards police. I was concerned that - by Sergeant Birch's spray not being effective and actually missing him, that it was going to make him more angry.

19. Asked about her decision to spray Mr Helmhout, she gave the following evidence:

And why did you apply the spray?---I knew that Mr Helmhout had been brought in for a domestic violence incident and being the only female in the watch-house and being on that side of the counter, I knew that I was at risk if Mr Helmhout did become more aggressive. I knew that if things were going to - if he's - if it was going to escalate then he would be targeting me.

Did you believe that there were reasonable grounds in existence for you to apply that spray?---Yes, I did.

You were aware that the procedure was being videoed?---Yes, I was aware of it.

And that the conversation would be recorded?---Yes, I was.

And did you believe that you were justified in applying that spray?---I did.

20. In cross-examination, Ms Apostoloff was asked about the operation of Order 3 of the Commissioner's orders on the use of force, which said:

(1) An AFP employee or special member may only use chemical agents against another person where he or she believes on reasonable grounds that their use is reasonably necessary in order to:

(a) Defend him or herself, or others from physical injury in circumstances where protection cannot be afforded less forcefully;

21. She gave specific evidence about her belief that she had used the OC foam, in accordance with the Commissioner's Order 3, to defend herself from injury:

And you've just told us you believed that it was justified and you may have heard me read out the circumstances under which it's allowed - the spray or use of force is allowed to be used. Did you hear me read those out in court?---Yes, I did.

And you remember one of those was to defend yourself from physical injury?---Yes.

And is that the manner in which you say - is that the ground, rather, that you used to justify your use of spray?---Yes, it is.

22. After the first spray, administered by Sergeant Birch, Mr Helmhout said "Go on" before he was sprayed by Ms Apostoloff. The prosecution said that the CCTV record shows that when Mr Helmhout said "Go on", immediately after Ms Apostoloff asked him whether he was now going to listen, he had turned to look at Sergeant Birch. That is how the Magistrate described the CCTV material, and it is also my interpretation of that material.

23. Ms Apostoloff, however, in cross-examination disputed that interpretation of the material. She explained:

He said "Go on" and as he said "Go on", he took a step and he lifted his chin as he said "Go on" and I took that as be [sic] aggressive towards police and that it was only going to escalate and it was going to end up with the - with us going what we call "hands on".

24. Ms Apostoloff is correct that Mr Helmhout did lift his chin slightly, but he had been looking down immediately before that and the lift simply enabled him to look at Sergeant Birch's face rather than the counter that was between the two men.

25. Ms Apostoloff was then asked about Mr Helmhout's reaction to the first spray:

... you said in your evidence that Mr Helmhout made no immediate reaction when he was sprayed by the sergeant. Do you recall saying that?---Yes, that's correct.

...

But isn't it the fact that once he was sprayed, he walked back towards the back of the room and started to wipe his face, isn't that what happened?---That's not the reaction that we would ordinarily expect from OC foam or OC spray, we'd expect immediate reaction, it would be burning to the eyes, if he - if it had made any effect to him at all, he would have - it would have been more like grabbing his face, not - not walking away like he did that - that's not a normal reaction to OC foam.

Did you see on the video just now that the first spray from the sergeant probably hit him below - below - just below his eye on the face, did you see that?---That's correct. I saw that it hit his lower part of the face, which wouldn't give the reaction that ordinarily we would want from OC foam.

26. Finally, Ms Apostoloff gave this evidence in cross-examination:

In your view, was Mr Helmhout being aggressive towards the sergeant before he received the first spray?---He was definitely being argumentative and he had been aggressive towards police, directly before the spray, probably not.

27. In accordance with AFP requirements, Ms Apostoloff completed a Use of Force Report about her use of OC foam on Mr Helmhout. The report, which was tendered in the Magistrates Court, contained the following explanation for the use of the OC foam:

David HELMHOUT was conveyed to the City Watchhouse for a breach of a family violence order.

While still in the rear of the police caged vehicle, showed aggressive and argumentative behaviour towards watchhouse staff.

Mr HELMHOUT was removed from the police vehicle and taken to stand in front of the charge counter. While standing at the counter, Mr HELMHOUT continued to be aggressive towards police and did not comply with police instructions.

Police believed that Mr HELMHOUT's behaviour continued to be aggressive and was about to escalate and he was going to become physically violent towards police. Mr HELMHOUT was target glancing towards police and was rocking back and forward on his feet, and clench and unclench his fists.

Sgt BIRCH deployed a 1 second spray of the 10% MK9 Magnum Oleoresin Capsicum Solution to the facial region of Mr HELMHOUT. The results of the 1 second exposure was minimal as Mr HELMHOUT turned as the spray was deployed and the spray hit him in the side of the head.

Mr HELMHOUT's behaviour continued to be aggressive and he target glanced Constable SMITH. As a result, Constable APOSTOLOFF, deployed another 1 sec burst of Oleoresin Capsicum Spray to the facial region of Mr HELMHOUT. Again, the results were minimal as Mr HELMHOUT turned as the spray was being deployed. About 10 seconds after the second exposure, Mr HELMHOUT started to show effects in his right eye. Mr HELMHOUT started to become compliant with police instructions.

28. It is clear that the prosecution does not have to actively rule out self-defence in every case involving any kind of assault. The obligation to exclude self-defence by proving beyond reasonable doubt that one or other element of the test for self-defence is not made out only arises if the evidence in the case actually points to self-defence as an issue.

29. Counsel for the DPP argued that there was in this case no basis for accepting that self-defence had actually been raised by the evidence (whatever had been said by Ms Apostoloff, her counsel or the Magistrate). He said that what had been done by Ms Apostoloff in the watch-house was solely an attempt to render Mr Helmhout compliant with police instructions. Counsel submitted that there had been no physical attack on Ms Apostoloff, and that at most her actions could only have been self-defence if they amounted to a "pre-emptive strike" (see Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316) of the kind described by Kirby J's comment in that case (at 381-382):

Self-defence may indeed be relevant to a case where an abusive relationship is established by the evidence. Such evidence may assist a jury to understand, as self-defensive, conduct which on one view occurred where there was no actual attack on the accused underway but rather a genuinely apprehended threat of imminent danger sufficient to warrant conduct in the nature of a pre-emptive strike. Clearly, it is still necessary to discriminate between a self-defensive response to a grave danger which can only be understood in the light of a history of abusive conduct and a response "that simply involves a deliberate desire to exact revenge for past and potential - but unthreatened - future conduct". [references omitted]

30. Counsel further submitted that "any fair view ... of the evidence establishes that there was no genuinely apprehended threat of imminent danger sufficient to warrant conduct in the nature of a pre-emptive strike".

31. Counsel for the DPP pointed to evidence that might have been relevant in assessing whether self-defence had been raised. He noted that Ms Apostoloff was an experienced police officer who had previously spent 10 weeks in the watch-house. She had been trained and re-trained in the use of capsicum spray, although she had no specific training in the use of capsicum spray in the watch-house. Ms Apostoloff was aware of the Commissioner's Order 3 on the use of force (see [20] and [21] above).

32. Counsel submitted that a review of the CCTV evidence of the actions and words of the participants in the incident, in particular Ms Apostoloff, Mr Helmhout, Sergeant Birch and another constable who, like Ms Apostoloff, was present on Mr Helmhout's side of the counter, clearly showed that Mr Helmhout was argumentative and annoying but, as conceded on behalf of Ms Apostoloff, he had not been physically aggressive directly before he was first sprayed by Sergeant Birch.

33. It may be true that neither the CCTV material nor the briefing about Mr Helmhout's behaviour when arrested, of itself, would raise any issue of self-defence, but taken together and in conjunction with Commissioner's Order 3, the "Use of Force" report and Ms Apostoloff's evidence quoted in [21] above, I consider that self-defence was raised in a sufficiently credible way to require the prosecution to negative it before the charge could be sustained. I reach this conclusion after having full regard to the fact that other explanations given by Ms Apostoloff for her actions (in particular, the need to ensure Mr Helmhout's compliance with police requirements - see [17] and [18] above) would not establish self-defence and indeed might be taken to detract from the credibility of the self-defence claim.

Did the Magistrate apply the self-defence test properly?

34. The next question is whether the test for self-defence was properly applied by the Magistrate to the facts as found in this case.

35. The test for self-defence as set out by the High Court in Zecevic v DPP (Vict) [1987] HCA 26; (1987) 162 CLR 645 at 661 is as follows:

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 did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.

36. In Zecevic, Deane J expanded on how the test of reasonableness should be applied by reference to the case of Viro v The Queen [1978] HCA 9; (1978) 141 CLR 88 as follows (at 672):

... the element of "reasonableness" arises at three different stages as the essential component of distinct requirements or tests. The first stage is in the requirement that the perception of the accused that there existed an occasion of self-defence must have been reasonable in the sense "not [of] what a reasonable man would have believed but what the accused himself might reasonably believe in all the circumstances in which he found himself". If the accused's perception of an occasion of self-defence was unreasonable in the context of his actual circumstances the effect of the formulation is that the defence fails completely. ...

37. The second and third stages mentioned by Deane J at which "reasonableness" is relevant relate to the issue of proportionate force, which is not raised in this case. It is clear from Deane J's explanation that an accused's honest but unreasonable perception that there was an occasion of self-defence is not adequate to establish self-defence; that is, the accused's belief about self-defence needs to be not just honestly held but also objectively reasonable in the particular context.

38. Both counsel agreed that the second limb of the Zecevic test is properly explained in R v Hendy [2008] VSCA 231 as follows (at [10]):

The question whether the belief was (proved not to have been) based on reasonable grounds is to be determined not by what a reasonable person would have believed but by what the accused person might reasonably have believed in all the circumstances in which he found himself.

39. At the risk of further confusing the issue, I note that while this test clearly has a subjective element (it relates to the accused person's belief, in the circumstances in which she found herself), it also has the objective element of whether that belief, in those circumstances, was reasonable. That question is not resolved by reference to the opinion of the accused that it was reasonable.

Did her Honour apply the right test in determining self-defence?

40. The Magistrate was not greatly assisted by counsel on either side in identifying and applying the correct test for whether self-defence provided an answer to the charge. Counsel for Ms Apostoloff did not explicitly refer to self-defence at all, and there was no proper canvassing of the test for whether self-defence could provide an answer to the charge. Despite this, it seems likely that her Honour did have the two limbs of the Zecevic test in her mind when she set out her conclusions. In her decision she alludes to both of them, albeit not in the structured way that might be expected if she had been directing a jury.

41. Because there are two elements to the test for self-defence, there were two ways in which the prosecution could have proved beyond reasonable doubt that Ms Apostoloff did not act in self-defence. The prosecution could have established, beyond reasonable doubt:

(a) that Ms Apostoloff did not believe that it was necessary in self-defence to do what she did; or

(b) that there were no reasonable grounds for Ms Apostoloff to believe that it was necessary in self-defence to do what she did.

42. In determining whether Ms Apostoloff believed that her conduct was necessary in self-defence, the court needed to consider the circumstances as Ms Apostoloff perceived them to be at the time of that conduct.

43. In determining whether Ms Apostoloff had reasonable grounds for believing that her conduct was necessary in self-defence, the court again needed to consider Ms Apostoloff's perceptions of all the circumstances in which she found herself, looking at that question not with the benefit of hindsight but in the realisation that a calm reflection cannot always be expected in a situation such as Ms Apostoloff found herself in.

44. The relevant parts of her Honour's reasons for finding the offence proved seem to me to be the following remarks:

However, Ms Apostoloff's defence to this act is that she was justified in using the spray upon Mr Helmhout because she believed he would become aggressive and become a direct threat to her of physical violence. She said she used the spray in self-defence.

...

She claims to have acted out of concern for her physical safety due to the aggressive behaviour of Mr Helmhout. Now, the evidence, however, does not support her.

...

It is true that [Ms Apostoloff] and other police in the watch-house had been alerted about Mr Helmhout's demeanour prior to his arrest. However, Ms Apostoloff also knew that he had been subdued by the other police without the need to resort to the use of spray. If there was concern on the part of the arresting police about Mr Helmhout's threat to use weapons, that threat clearly had passed by the time he was conveyed to the watch-house.

Mr Helmhout was offensive and he was abusive. He was intoxicated and he was not cooperative. But I do not find that by his actions at the watch-house Mr Helmhout's behaviour was such that justified the use of the capsicum spray against him by Ms Apostoloff. I find that Ms Apostoloff has no reasonable grounds to believe that she needed to defend herself or, indeed, others from physical injury. I believe that she used the spray to perhaps make Mr Helmhout more compliant with Sergeant Birch's questioning but not as a defence to herself from his aggression. So consequently I am satisfied beyond reasonable doubt that Ms Apostoloff committed the offence as charged and I find the offence proved.

45. First, she appears to accept Ms Apostoloff's assertion that "she believed Mr Helmhout would become aggressive and become a direct threat to her of physical violence". There is no indication that the prosecution has convinced her Honour beyond reasonable doubt that Ms Apostoloff did not believe she needed to act in self-defence. If her Honour had been convinced of that matter, she would not have needed to consider self-defence any further.

46. However, her Honour does go on to consider the objective evidence. She comments on the relationship between Ms Apostoloff's claim that "she acted out of concern for her physical safety" (again, an apparent acceptance of Ms Apostoloff's evidence as to her own state of mind) and what her Honour refers to as "the evidence", which she says does not support Ms Apostoloff's claim. Her Honour's comment about "the evidence" could have been more carefully expressed, but I am satisfied that on a proper reading of those comments her Honour was not saying that the evidence did not support Ms Apostoloff's claim about why she acted as she did. Rather, she was saying that the evidence did not support a finding that there were reasonable grounds for the belief that Ms Apostoloff claimed to have held. Her Honour was not finding that Ms Apostoloff did not believe what she claimed to believe; she had moved on to considering whether the evidence showed any reasonable grounds for that belief.

47. Finally, having canvassed the relevant evidence, her Honour concluded that Ms Apostoloff had "no reasonable grounds to believe that she needed to defend herself or, indeed, others from physical injury". This is a clear reference to the second limb of the Zecevic test, and a clear finding that this aspect of self-defence had been excluded beyond reasonable doubt.

48. That is, her Honour examined whether either limb of the Zecevic test had been negatived by the prosecution, and was clearly satisfied beyond reasonable doubt that the second element of the test for self-defence, that Ms Apostoloff had reasonable grounds for her belief, had been negatived by the prosecution. Having thus ruled out the availability of self-defence, she went on to find the offence proved.

49. Part of the argument made on behalf of Ms Apostoloff seems to be founded on an extract from R v Portelli [2004] VSCA 178; (2004) 10 VR 259, in which Ormiston J at [19] refers to the "claimed right" to act in self-defence remaining "based on what is perceived to be reasonably necessary by the accused in all the circumstances"; this passage was cited by counsel for Ms Apostoloff in support of his argument that the Magistrate had applied the wrong test for self-defence. The words quoted appear in a statement about the width of the class of people in whose defence a person may act in self-defence, and they should not be taken out of context. To the extent that the passage could give the impression that the test is what the accused perceived to be reasonably necessary, it is inconsistent with the test as stated by Ormiston J later in his judgment at [24]-[25], in the context of reviewing the law as laid down in Zecevic:

What the majority of the High Court held, nevertheless, was expressed in the following terms. The joint judgment on this point commenced by observing that a person who kills with the intention of killing or doing serious bodily harm "can hardly believe on reasonable grounds that it is necessary to do so in order to defend himself unless he perceives a threat which calls for that response". That certainly is concentrating on the objective test of reasonableness. They continued:

A threat does not ordinarily call for that response unless it causes a reasonable apprehension on the part of that person of death or serious bodily harm. If the response of an accused goes beyond what he believed to be necessary to defend himself or if there were no reasonable grounds for belief on his part that the response was necessary in defence of himself, then the occasion will not have been one which would support a plea of self-defence.

It may be observed that this passage again concentrates very much on the reasonableness of the belief that the accused in fact held. That conclusion is entirely consistent with the conclusion reached a little earlier that the element of reasonableness remained part of the test for self-defence and that it was not a test which, as counsel had argued, depended solely on the subjective belief of the accused. [references omitted, emphasis added]

50. In short, what Ms Apostoloff believed was reasonable was not relevant to the second limb of the Zecevic test. What she believed about the need to act in self-defence was relevant to the first limb of the test, but the question for the second limb was whether the circumstances as she believed them to be provided objectively reasonable grounds for her belief.

51. Thus, Ms Apostoloff's evidence that she believed there were reasonable grounds for spraying Mr Helmhout in self-defence is not in any sense decisive of the Zecevic question whether she had reasonable grounds for believing that it was necessary in self-defence to spray Mr Helmhout; for this reason I reject her counsel's submission that "she hasn't been touched in cross-examination in relation to what she says was her state of mind. And if you accept that or you're not convinced about that, then you can't convict, with respect".

52. There is good reason why the second limb of Zecevic is described as the objective test; while it certainly requires an examination of the circumstances as the accused perceived them at the time, it also requires an assessment whether, in those circumstances, the accused had reasonable grounds for forming the required belief about the need to act in self-defence. If the fact-finder is satisfied beyond reasonable doubt that in circumstances such as the accused believed to exist, there were no reasonable grounds for acting in self-defence, then self-defence has been ruled out, and the accused's opinion or belief that those circumstances did provide reasonable grounds is irrelevant.

53. In summary, I am satisfied that her Honour applied the correct test for self-defence in reaching her decision. Having seen the evidence on which her Honour relied, except for the fact that I have read the transcript of evidence given in the Magistrates Court rather than observing Ms Apostoloff giving that evidence, I am also satisfied that her Honour's conclusions on self-defence were available on a proper application of the relevant law to the evidence that was put before her. As far as I can see, there was nothing emerging from the events as shown in the CCTV record and as described by Ms Apostoloff in evidence, even considered in the light of the information that had earlier been given to Ms Apostoloff (including the fact that Mr Helmhout had been arrested for a domestic violence offence), that provided reasonable grounds for Ms Apostoloff to believe that she or any of her colleagues were in danger of anything more serious than having to listen to a lot of bad language while having their time wasted by Mr Helmhout's general lack of co-operation.

54. An extract from the Use of Force report is set out at [27] above. The repeated references to Mr Helmhout being aggressive and the assertion that "Mr Helmhout was target glancing towards police and was rocking back and forward on his feet, and clench and unclench [sic] his fists" are not supported by the CCTV material.

55. The Use of Force report was referred to by counsel for Ms Apostoloff as further evidence of her state of mind, and by counsel for the DPP as "redolent of a consciousness of guilt".

56. Since I have found that the Magistrate accepted Ms Apostoloff's evidence about her belief and have held that Ms Apostoloff's opinion about whether there were reasonable grounds for that belief was in any case irrelevant, there is no need to look to the Use of Force report for evidence about what Ms Apostoloff believed. Equally, in view of my conclusion that her Honour's findings about self-defence were available on the primary evidence before her, there is no need to point to the Use of Force report for evidence of consciousness of guilt. Accordingly, I do not see any need to reach any conclusion on the submissions made about this report.

57. There was no error in the Magistrate's approach to self-defence in this case. Her Honour properly applied the two elements of the Zecevic test, and reached a conclusion which was available on the evidence before her.

58. The cross-appeal is dismissed, and the parties will be heard on the DPP's appeal.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the cross-respondent: ACT Director of Public Prosecutions

(Sentencing) Act 2005

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