Carlson v The King (1947) 64 WN (NSW) 65

Haysdale Nominees v Shepherd (1998) 98 A Crim R 435

Lloyd v Faraone [1989] WAR 154

R v Tognini & Anor [2000] WASCA 31

Riley v Gill, unreported; SCt of WA; Library No 970731; 8 December 1997

Soulemezis v Dudley (Holdings Pty Ltd) (1987) 10 NSWLR 247

Underwood & Ors v Gayfer [1999] WASCA 56

1 MILLER J: The appellant was charged in the Court of Petty Sessions, Perth that on 7 December 1998 at Lockridge he unlawfully assaulted one Scott Forrest Grieves. To this charge he pleaded not guilty, and on 10 January 2000 he came before Ms Bennett-Borlase SM when the matter proceeded to a hearing. The case against the appellant was that on 7 December 1998 he had been involved in an incident in a street in Lockridge when he cut off another motor vehicle, hopped out of his vehicle and had an altercation with one of the occupants of the other vehicle. No particulars of the alleged assault were given, but it appears that the prosecution case was that the appellant armed himself with a stick and challenged the complainant to a fight.

2 The testimony of the complainant Grieves was that he was a passenger in a vehicle driven by his girlfriend, Nicole Johnston, when the vehicle was cut off and forced to go up the kerb. Ms Johnston had called the driver of the vehicle an idiot and shortly afterwards was cut off again, following which the driver of the other vehicle got out of the driver's seat and came to Ms Johnston's vehicle, where when asked by Grieves what his problem was, he said "Do you want to fight, do you want to fight?". Grieves testified that he had been out of the vehicle and went to get back into it when the appellant pulled out a big stick from his vehicle and again said "Do you want to fight?", whereupon Grieves ran to his brother's place, leaving the appellant speaking to his girlfriend.

3 Ms Johnston testified that she was driving down a loop in Matener Square, Lockridge when she was cut off by a vehicle and forced to go up the kerb to avoid an accident. As the offending vehicle passed her, she called out "What are you doing you bloody idiot" and after proceeding on her way and driving into Scanlon Way, she was cut off again by a vehicle which behaved as if it was "a cop car". The events that then occurred were put by her as follows:

"And anyway they both - Scott and the man - hopped out of the car. They ended up at the boot of the other person's car. Scott said to the man, 'What are you doing? You weren't even watching the road.' The man said to him, 'Do you want to fight?' Scott said, 'No. I just wanted to know what you were doing. You weren't even watching the road.' So as the other man turned back towards his car, Scott thought it was over, so Scott turned back, walking towards our car, the Commodore. Anyway, Scott must have seen my face, or whatever - the expression I had on my face - as he turned around the other man came towards Scott with a, like a long piece of wood, plank of wood thing, with a knob thing on the end.

PROSECUTOR: Right? --- Anyway, Scott said, 'What are you doing?' and he said, 'Do you want a fight? I'll fight you.' Scott started running down, back towards his brother's house - south, I think it was - about 10 to 20 metres, I'd say. He eventually gave up and stopped chasing Scott and he turned, walking towards me."

4 The testimony of Ms Johnston suggests that the appellant had chased Grieves, but Grieves did not say so. When further questioned on this topic Ms Johnston said that the appellant had chased Grieves for perhaps 10 to 20 metres.

5 The defendant gave evidence at the hearing and painted a completely different picture of events. He testified that he had been forced off the road by the vehicle driven by Ms Johnston, who was apparently looking at houses and not observing where she was going. He testified that Ms Johnston had abused him by saying "You black bastard", as a result of which he felt offended and drove around the loop and into a position in front of Ms Johnston's vehicle where he stopped. When she stopped behind him he got out of his car but by the time he was out of his car the passenger of the other vehicle had got out and come towards him. His version of events that then occurred was as follows:

"So as I was coming, then the guy came and was in front of their car, in front of their bonnet, and I was on the other side. So he was -- I realised he was holding a knife on his left, on his right-hand side, down the side. So ... (indistinct) ... I saw the knife, so I got scared, so I went back to my car and took that stick, which was on the floor. At other times I --- the stick, ... (indistinct) ..., because I perform in town, so I leave my gear there, and I'd just taken the stick to be cut short, because traditionally it has to be short when you're dancing. So I took the stick and the guy realised that I've come with the stick so he retreated. Then when he retreated I went back. I went back to my car. So I drove off. By the time when I was driving off he was outside the passenger's seat - passenger door of his car."

When cross-examined the appellant said that he had gone to his vehicle, opened the door and picked up his stick and had thereafter merely kept his eye on Grieves who walked towards him. His evidence was that when Grieves saw him coming with the stick he retreated backwards.

6 Faced with this dramatic divergence in testimony, the learned Magistrate found that she accepted the evidence of the complainant and Ms Johnston and rejected the evidence of the appellant. Her reasons were as follows:

"HER WORSHIP: Yes. Thank you. This is a charge that on the 7th of December 1998 at Lockridge that Jabulane Owen Matsebula unlawfully assaulted Scott Forrest Grieves contrary to section 313 of the Criminal Code. This appears to be yet another incident or road rage which has got out of hand. There was no need for Mr Matsebula to have stopped his car at all. He says he heard racial violence. He says he has experienced it in the past. One would have thought that he would have just walked away, and would not have expected him to come to the extremes that this has happened here.

Even his story of the knife, which I do not accept, if it could have been accepted it still would not have availed him anything, because he could have, on his own evidence, clearly got into his car even then and driven away. He has not done so. He has chosen to get himself a weapon from the car, and the exhibit P1 before the court is clearly a very nasty piece of wood which could be used as a very nasty weapon to inflict a lot of pain.

I accept the prosecution case as being proved beyond reasonable doubt. I do not intend to go through all the evidence. I did not find the defendant credible in any way, shape or form, but I did find the two prosecution witnesses straight and to the point. Yes, thank you. The charge is proven."

7 From the learned Magistrate's decision leave to appeal to this Court was granted by Scott J on 22 February on the following grounds:

"A. The Learned Magistrate erred in law in failing to give adequate reasons for her decision.

B. The Learned Magistrate erred in law in failing to make a finding as to what act or event amounted to the alleged assault.

C. The Learned Magistrate erred in law in incorrectly applying the onus of proof in relation to the defences of provocation and self-defence.

D. The Learned Magistrate erred in law in failing to give any or any adequate consideration to the issues of self-defence and provocation.

F. In sentencing the Applicant the Learned Magistrate erred in law in not ordering the conviction be spent having regard to the following factors.

I The Applicant's previously excellent antecedents including his record.

II Circumstances in which the offence was committed.

III The fact that the assault did not involve the striking of a blow.

IV The adverse effect a conviction will have on the Applicant's professional career."

8 The learned Magistrate's reasons for her decision were extremely brief. It is argued on behalf of the appellant that they were so brief and lackin in detail as to make it impossible to ascertain the Magistrate's reasoning. It is, of course, true that a Magistrate must provide adequate reasons for a decision. The matter was recently considered in Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 where Owen J said (at 248 [73 - 74]):

"At common law there was (and is) a duty on a decision maker required to act judicially or quasi-judicially to give reasons for decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination. I will repeat what I said on the general question of a duty to give reasons (with which White J agreed) in Frichot v Zalmstra (unreported, Supreme Court, WA, Full Court, WA, Library No 981291, 13 May 1998) at 14:

'The authority most often cited in this regard is the dicta of Moffit P, in Pettit v Dunkley [1971] 1 NSWLR 376 at 387-388. That passage is so well-known that I will not repeat it other than to say that it has been adopted in this Court in cases such as Lloyd v Faraone [1989] WAR 154 at 163.

In Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 702 the court indicated that in a position such as we have here the appealable error lies not in the result of the trial but in the failure to give relevant reasons in circumstances which deprive a party of an effective right of appeal conferred by statute.

To that I would add that in our judicial system, where proceedings are to be conducted in public, the duty to give reasons is an adjunct to or in some respects a part of the overall obligation to afford to litigants procedural fairness. Put in that way, in addition to securing the statutory right of appeal, the obligation to give adequate reasons is part of the fairness to a litigant who comes to the court to know why it is that he or she succeeded or has been unsuccessful ... [T]hat does not mean that every piece of evidence, every exhibit, every word that has fallen from counsel during submissions must be alluded to expressly or even by implication in the course of giving reasons. It would neither be necessary nor feasible for an obligation of that nature to be imposed on trial courts.

It is sufficient if the reasoning process which led to a result is disclosed with sufficient certainty to enable the litigant to know why it is that the result ensued and to ensure that the statutory right of appeal has been secured.'

The tribunal of fact in that case was the District Court. However, I believe the principles are equally applicable to the Court of Petty Sessions. To the authorities mentioned in that extract I would add Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259, 277-281; Danagher v Racing Penalties Appeal Tribunal (1995) 13 WAR 531 at 539-40, 548 and Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639 at 640, 647. I would also add that it is necessary to look at the reasons as a whole to see if they give the sense of what was intended in a way that achieves the results to which I have referred. It is sometimes the case that by dissecting the reasons line by line, word by word the reader loses the sense of what is conveyed by a particular passage. It is often the case that the true sense can be gleaned only by looking at the passage in the context of the whole. In this way something which appears at first glance to be a material omission may be adequately explained.

In this case the magistrate's reasons could have been more happily and more expansively phrased. But in my view they disclose the essential intellectual process by which his Worship arrived at his decision."

9 The respondent argues that the "essential intellectual process" by which the learned Magistrate arrived at her decision is clear from her reasons for decision as a whole. It is contended that she recognised that the prosecution bore the onus of proof beyond reasonable doubt and she clearly accepted the evidence of the prosecution witnesses as being "straight and to the point" and rejected the testimony of the appellant. The respondent argues there was no requirement to go further, citing Garrett v Nicholson (supra) per Pidgeon J (at 237 [33]) where his Honour said:

"I have, with respect, reached a different conclusion from that expressed by the learned judge who heard the appeal in the first instance. His Honour considered that the magistrate failed to explain how any of the conflicts of evidence had been resolved and failed to explain why the evidence of Mr Morris had not been accepted. I consider that his Worship did make it clear that the reason why he did not act on Mr Morris' evidence is because he had a reasonable doubt as to whether it was correct by reason of the impression the appellant's evidence had on him. There is no requirement for his Worship to say why he was impressed with that evidence. That is entirely a matter of judgment from observing the witness give evidence, comparing his evidence to other factors and often the reason why a witness makes an impression cannot be expressed in any greater detail. It is different from weighing up medical witnesses in the way referred to by Kennedy J in Stojkovski v Fitzgerald [1989] WAR 328 at 340."

However, the appellant argues that the learned Magistrate failed to set out the elements of the offence faced by the appellant and the evidence by which she found that offence to be proven. In particular, she failed to make any finding as to what act or event amounted to the assault alleged. It was also complained that she failed to specify what standard of proof she applied in relation to possible defences of provocation and self defence.

10 During the course of the proceedings the learned Magistrate seems to have been alive to the question of proof of the elements of the charge of assault, because at the conclusion of the examination of Grieves, the following exchange with the prosecutor took place:

"HER WORSHIP: Have you read what this charge is, sergeant?

HER WORSHIP: Thank you. Cross-examination, Mr Sullivan?"

11 Although somewhat elliptical, her Worship's comments would seem to be consistent with reservations on her part that the prosecution had established the necessary ingredients of the offence of assault within the meaning of s 222 of the Criminal Code. That section defines assault in the following terms:

"A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault."

Although never particularised, the prosecution case appears to have been that the appellant had, by bodily gesture, threatened to apply force to Grieves. The learned Magistrate did not advert to the question in her reasons, but when sentencing the appellant did say "The threat of assault, of violence, is not to be tolerated in this State". It is, of course, the case that an assault can be made out by establishing that the assailant has an intention either to use force or to create an apprehension of the use of force on the person being assaulted. In Hall v Fonceca [1983] WAR 309, it was put this way by Smith and Kennedy JJ (at 313 - 314):

"It is generally accepted that the section lays down the common law as understood at the time of enactment of the Code (see, for example, Brady v Schatzel [1911] St R Qd 206). At common law, the weight of opinion clearly favours the view that there must be, on the part of the assailant, an intention either to use force or to create an apprehension of the use of force on the part of the person being assaulted. That has not been of recent development. It is unnecessary to consider whether recklessness, where the assailant adverts to the consequence of his conduct, suffices for this purpose, although there is strong support for the view that it does. See generally Russell on Crime (12th ed), p 652; Smith and Hogan, Criminal Law (4th ed), p 353; Tuberville v Savage (1699) 1 Mod 3; [1669] EWHC J25; 86 ER 684; Wood v Bowron (1866) LR 2 QB 21 at 30; MacPherson v Brown (1975) 12 SASR 184 at 188-9, 199-200, 212; Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; R v Venna [1975] EWCA Crim 4; [1976] QB 421 and Logdon v DPP (1976) Cr L Rev 121. As to the necessity for the existence of a relevant intention in order to constitute an assault in the law of tort, see Prosser on Torts (4th ed), pp40-1; Fleming on The Law of Torts (6th ed), p 24; Restatement of the Law of Torts (2nd ed), par 21 and Linden Canadian Tort Law, p 40; but cf Bruce v Dyer (1966) 58 DLR (2d) 211; Salmond on Torts (17th ed), at p 122; 38 Halsbury's Law of England (3rd ed), p 761 and Winfield and Jolowicz on Tort (11th ed), p 51.

Although the authorities are surprisingly sparse in this area, we accept that an intention on the part of the assailant either to use force or to create apprehension in the victim is an element in an assault. Macrossan SPJ apparently had no doubt that the relevant intention on the part of the assailant was necessary to constitute an assault under the Code (see R v McIver (1928) 22 QJPR 173 and see also Fogden v Wade (1945) NZLR 724 at 728).

12 It will be seen that it is an essential element of the offence of assault as so defined to prove that the assailant had an intention either to use force or create an apprehension of the use of force. In Hall v Fonceca (supra), the particulars of assault were formulated as being the raising of both hands by the defendant "in a threatening manner so as to cause the defendant to fear an imminent attack" and "prior to the actual assault ... behaving in an aggressive and highly provocative manner towards the defendant". In dealing with whether or not the conduct in question constituted a threat, Smith and Kennedy JJ said (at 314):

"The fact that his Honour found that, when the appellant moved his right hand, he had not intended to punch the respondent is not determinative of the present case. It would have been sufficient to constitute a threat if there had been an intention on the part of the appellant to cause apprehension to the respondent. His Honour expressed his finding in terms of the Code definition, in which the requirement of the relevant intent is implicit in the word 'threatens', and, in doing so, he set out what constituted the threat, namely, a 'combination of actions and attitude'. One of the meanings given to the latter expression in the Oxford English Dictionary is a posture of the body proper to or implying some action or mental state. The use by his Honour of this word, particularly in association with the word actions, appears to us sufficiently, in the particular passage, to connote the necessary mental element."

13 Whilst therefore it may be possible to prove an assault by establishing that there was a combination of actions and attitude on the part of the assailant which constitutes a threat, it is also necessary to establish that there was on the part of the assailant an intention either to use force or create an apprehension of the use of force. In the present case, none of these matters was considered by the learned Magistrate. Although not obliged to give full and detailed reasons in relation to every aspect of the decision making process, her Worship was, in my view, required to articulate how the assault alleged had been proven. That is, had it been proven by the prosecution beyond reasonable doubt that the appellant intended to use force or to create an apprehension of the use of force and had it been proven that the combination of "actions and attitude" of the appellant constituted a clear threat within the meaning of the Code. As it was, the evidence merely established that the appellant had gone to his vehicle and taken out a stick which he had held but in relation to which there was no suggestion he had offered a threat. Although the appellant had questioned Grieves whether he wanted to fight, and occasioned Grieves to run away, there was not, in my view, any proof that the appellant had revealed an intention either to use force or create an apprehension of the use of force on Grieves. Certainly there was no evidence that he had moved his hand or arm and/or remonstrated at Grieves with the stick, so that it could be said that there was "a combination of actions and attitude" which indicated a threat to apply force. It is the failure on the part of the learned Magistrate to deal with any of these matters which, in my view, constitutes a fatal shortcoming in her reasoning process. The evidence was ambiguous: The appellant was holding a stick and did ask Grieves whether he wanted to fight, but this was as consistent with arming himself to defend himself against aggression from Grieves as it was evidencing an attitude of a threat to apply force to Grieves. In fact, there was a complete absence of any evidence to support the necessary conclusion that there was an intention on the part of the appellant to either use force or create an apprehension of the use of it. As I have said, the learned Magistrate failed to deal at all with these important matters, and therefore I conclude that the appellant is correct in the submission that there was a failure to give sufficient reasons in order that an appellate court could follow her Worship's reasoning. In all the circumstances of the case I am of the view that the charge of unlawful assault faced by the appellant was not made out and the process of reasoning of the learned Magistrate was so deficient as to leave no alternative but to allow the appeal and quash the conviction of the appellant.