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[2014] ACTSC 112
Supreme Court of the ACT
2024-06-04
Refshauge J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
MICHAEL O’CONNELL v DAVID MCMENNEMIN
[2014] ACTSC 112 (4 June 2014)
APPEAL AND NEW TRIAL – In General and Right of Appeal – Failure of Special Magistrate to give sufficient reasons for decision – Failure of Special Magistrate to make required factual findings in reasons for decision – Failure of Special Magistrate to detail the weight afforded to evidence of each witness – Reasons for decision need not be elaborate or lengthy – Reasons must articulate the essential grounds on which the decision rests – Reasons of the Special Magistrate sufficient on the issue of the offence itself – Reasons of the Special Magistrate insufficient on the issue of self-defence – Appeal ground upheld
APPEAL AND NEW TRIAL – In General and Right of Appeal – Defence of self-defence – Misapplication of the law relating to self-defence – Issue not properly addressed in the reasons of the Special Magistrate – Remarks of the Special Magistrate on the issue of self-defence problematic – Appeal ground upheld
APPEAL AND NEW TRIAL – Interference with Special Magistrate’s Finding of Fact – Whether verdict unsafe or unsatisfactory – Misapplication of the law relating to self-defence does not lead to an inevitable acquittal – Appeal ground dismissed
Magistrates Court Act 1930 (ACT), s 208(1), Pt 3.10
Australian Capital Territory Magistrates Court, Practice Direction No 1 of 2009, Case Management Hearings and Committal Hearings)
Brooks v McShane (1996) 89 A Crim R 195
Fleming v The Queen (1998) 197 CLR 250
Gannon v Police (2005) 93 SASR 289
Hanel v Shoemark [2010] ACTSC 67
Liberato v The Queen (1985) 157 CLR 507
M v The Queen (1994) 181 CLR 487
Papps v Police (2000) 77 SASR 210
Pettitt v Dunkley [1971] 1 NSWLR 376
R v Donovan [1934] 2 KB 498
R v Howe (1958) 100 CLR 448
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
T v Medical Board of South Australia (1992) 58 SASR 382
Wood v Marsh (2003) 139 A Crim R 475
Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 82 of 2013
Judge: Refshauge J
Supreme Court of the ACT
Date: 4 June 2014
IN THE SUPREME COURT OF THE )
) No. SCA 82 of 2013
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MICHAEL O’CONNELL
Appellant
v
DAVID MCMENNEMIN
Respondent
ORDER
Judge: Refshauge J
Date: 4 June 2014
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
The orders of the Magistrates Court convicting Michael O’Connell and sentencing him be set aside.
The proceedings be remitted to the Magistrates Court to be heard and determined according to law.
The Respondent pay the Appellant’s costs of the appeal.
This appeal arises out of a dispute over a deceased estate. The complainant, Melise O’Connell, was the executor of her grandmother’s estate, which included a house in Ainslie.
Arrangements were made with her brother, Michael O’Connell, the appellant, to attend there on 30 March 2013 so he and his wife could collect some furniture, which he has been given from the estate. A disagreement erupted and, as a result, Mr O’Connell was charged with assaulting Ms O’Connell and as a consequence causing her actual bodily harm. He was convicted of this offence.
The learned Special Magistrate fined Mr O’Connell $500 and made a good behaviour order for twelve months.
Mr O’Connell has appealed against his conviction but not the sentence.
Jurisdiction
This Court is granted jurisdiction under Pt 3.10 of the Magistrates Court Act 1930 (ACT) to hear and determine appeals from the Magistrates Court in its criminal jurisdiction.
An appeal against conviction is provided for by s 208(1) of that Act. The appeal is by way of rehearing. I have described in Hanel v Shoemark [2010] ACTSC 67 the principles applicable to such a hearing.
That is to say, this Court must determine whether the Magistrates Court has made a wrong decision by falling into error of law, making a finding of fact that is wrong or exercising a discretion on a wrong principle.
While making a proper allowance for the advantage enjoyed by the Magistrates Court of having seen and heard the witnesses, which advantage must be respected, this Court may find that the decision made by the Magistrates Court is erroneous from, for example, incontrovertible facts or uncontested testimony and this Court can draw its own inference from the found facts.
This Court should, if error is shown, make the appropriate decision on the facts that exist at the time of the appeal and by making its own decision in the circumstances or by remitting the matter for rehearing. The appeal
The Notice of Appeal was filed on 1 October 2013. At the hearing, I gave Mr O’Connell leave to amend the Notice of Appeal.
As amended, the grounds of appeal were as follows: (a) His Honour erred in finding the said charge proved, and in convicting the appellant of that charge, as to so find any order was contrary to the weight of the evidence, and was unsafe and unsatisfactory. (b) His Honour failed to properly consider the evidence that indicated that in striking the complainant the appellant was acting in self defence. (c) His Honour misapplied the law relating to self defence when considering whether the said charge had been established according to law. (d) His Honour erred by failing to give adequate reasons for his decision, and for failing to adequately state the finding of fact which he made, to enable a proper understanding of the basis upon which the finding of guilt against the Appellant was made. The proceedings
Mr O’Connell was originally charged with two counts of assault occasioning actual bodily harm and one charge of common assault.
He appeared in the Magistrates Court on 1 April 2013 and, after a number of adjournments, a Case Management Hearing (see Australian Capital Territory Magistrates Court, Practice Direction No 1 of 2009, Case Management Hearings and Committal Hearings) was held on 26 June 2013 and a hearing date set for 26 July 2013.
The hearing commenced on 26 July 2013 and was adjourned to 1 August 2013. His Honour reserved his decision and on 11 September 2013 delivered his decision. His Honour dismissed the first offence of assault occasioning actual bodily harm and the offence of common assault.
He convicted Mr O’Connell of the second offence of assault occasioning actual bodily harm. The evidence
A number of witnesses gave evidence for the prosecution at the hearing and Mr O’Connell gave evidence in his case. It is appropriate to summarise the evidence which I do as follows.
Ms O’Connell said that arrangements were made with her brother, Mr O’Connell, to meet at their grandmother’s house in order to move three items of the furniture to Mr O’Connell’s home which he was going to take.
Mr O’Connell, his wife and Ms O’Connell went to the house on 30 March 2013 and disassembled a water bed which was then taken by trailer to Mr O’Connell’s home where it was unloaded.
While there, Mr O’Connell’s wife said that, contrary to an earlier understanding, they did not want a wall unit which had been one of the items it had been understood that they were also taking. This caused Ms O’Connell to become quite cross. She drove off, but returned to her grandmother’s house.
Mr O’Connell and his wife also returned to the grandmother’s house intending to collect the third item, a washing machine in the laundry. When they arrived at the house, Ms O’Connell was there and Mr O’Connell’s wife reiterated that they did not want the wall unit which made Ms O’Connell feel “really angry”.
She then told them that if they were not going to take the wall unit, they could not have the washing machine. Mr O’Connell remonstrated at this and said he would go and get the washing machine.
Ms O’Connell went up the driveway and into the laundry. Mr O’Connell followed after her and went to the back steps into the laundry. It was here that a violent incident occurred between the two which resulted in the charges being laid.
Ms O’Connell said she stood in front of the washing machine with Mr O’Connell facing her, she said about a half a metre away or less. Ms O’Connell said “If you want it, you have to come through me first” and Mr O’Connell said “I will then”.
Ms O’Connell said that Mr O’Connell grabbed her around the head trying to drag her to the floor. She said she was forced to a bent position, looking at the floor. She attempted to “fling” him off and successfully did so.
Her description of the course of the fight after that was a little vague. She said that she tried to hit Mr O’Connell back and was pushed into a corner next to the washing machine near the laundry trough. She remembered being struck and there being a lot of pushing and shoving.
Ms O’Connell said that at one point she was struck in the nose and, understandably, felt pain. She noticed that she started to bleed and went into the kitchen to get something to stop the bleeding. That seems to be the only punch she described as receiving in the incident.
She said that after she went into the kitchen, Mr O’Connell unscrewed the washing machine and was dragging it out of the laundry when she went back in and kicked him. She was yelling and Mr O’Connell said something like, “I never said you weren’t working hard and doing a good job of Nan’s house”, and what she described as “stuff like that”. He also said to her to “calm down”. She says she just told him he was lazy and at some stage that his wife was lazy.
At this stage, it appears that Mr O’Connell’s wife was walking up to where they were. Ms O’Connell said that Mr O’Connell objected to her calling his wife lazy and that she “noticed punches coming toward [her]”, but then said it might have been one or a couple.
She said that later she got into her car and shouted at Mr O’Connell’s wife. She said that Mr O’Connell came up to her car and hit her three or four times in the face through the window. She said the first punch hit her in the eye and there were “a couple more ... around the face area”. She later reported the incident to police. She was treated at The Canberra Hospital and photographs were taken by police. The photographs were tendered at the hearing. I have looked at them.
Ms O’Connell was treated for a broken nose and said that she still had a chipped tooth from the incident. She said she still has some swelling under her eye.
Ms O’Connell was cross-examined. It is not necessary to summarise the whole of the cross-examination.
She agreed that Mr O’Connell had a disability, being his left arm, which was “effectively useless” and extremely sensitive, making him liable to quite severe pain if he knocked it, and that she knew these matters.
She also agreed that when she and Mr O’Connell and his wife returned to her grandmother’s house from delivering the water bed, she was still angry and, indeed, threatened to smash up the wall unit.
Ms O’Connell was challenged on how the fight started, but affirmed the evidence she had given in chief. She said that when Mr O’Connell grabbed her she tried to punch him at once but that no connection was made. She recalled also kicking him because, as he was taller than her, she could not reach him with her punches. She made the punches with a clenched fist. The kicks grazed his thigh she said.
She also said that she received one punch in the face and that was the only punch she received in the laundry. She said that this happened after she had thrown her punches.
Mr O’Connell’s wife gave evidence. She did not see the incident, but she said that after Mr O’Connell went to the laundry, when they had returned from delivering the water bed to their home, she heard “a lot of crashing” and she heard Ms O’Connell swearing. After she heard another crash she went round to the back yard and saw Mr O’Connell come out from the laundry quite distressed and he said, “I have hit her. We have had a fight”.
She then said that they both went back to the steps to the laundry where Ms O’Connell was at the laundry door. She said that she saw Ms O’Connell kicking and throwing punches at Mr O’Connell, who was blocking them with his right arm. She went up behind him to stop him from falling down the stairs. She said that, at this time, Mr O’Connell did not touch Ms O’Connell.
A few minutes later, she grabbed Mr O’Connell and they moved back. Ms O’Connell later walked to her car. After a brief altercation, she saw Mr O’Connell put his head into the driver’s side window but she said he did not punch Ms O’Connell.
Ms O’Connell’s mother was called to give evidence and, relevantly, she explained that Mr O’Connell told her that he had hit Ms O’Connell once and he was very upset about it. She questioned him about it and he stated that he only hit her once.
Ms O’Connell’s partner was also called. He told of Ms O’Connell returning home after the incident. He said that she had blood coming out of her nose and two black eyes. He said that she told him that Mr O’Connell had punched her several times. He urged her to go to the police, which she did. The tendered photographs, however, showed only her right eye had been hurt and this was consistent with the medical notes from the hospital which were also tendered.
The informant, Constable David McMennemin, also gave evidence. He interviewed Mr O’Connell and produced a transcript of the interview. In it, Mr O’Connell described the incident where he hit Ms O’Connell as follows Yeah, I was more defending myself because she was – pushed me out the laundry door when I was trying to get the washing machine out of there – and then she started hitting into me because I went to – I went back to try and grab the washing machine to try and pull it out the door – and then she just pushed me and then started swinging so that’s when – she just wouldn’t stop – so I had – yeah, I had to hit her to get her away because I couldn’t – I’ve only got one arm to defend myself with and it was very hard with her swinging punches and kicking me, and everything else, and you can see the bruises there which – when I was blocking her when she was kicking me and punching me with – and that was the only way.
Mr O’Connell then, in answer to questions during the interview, described the background and the course of events and was asked more questions about the incident and the transcript records him saying So, describe how she was hitting and punching you to me? She was just swinging, like, helicopters and, literally kicked me, like, in the ---
Where were they connecting with you?
Well, as you can see the arm there, that’s where I was blocking it.
...
And then, you said, ‘You hit her?’
Yes, that’s when I hit her to – just to stop her.
How did you hit her?
I just – just, like – like, a bit of a push-punch, sort of a thing, just to ---.
So, a jab with your right arm?
Yeah, yeah, it’s not a – really, a full on jab – it’s just more of a – like, just a push-punch, like, in the – in her face area just to try and get her right over out of the road.
Was your fist clenched at the time or did you have an open hand?
No, it was closed.
And when did you that – so on a scale of one to ten – one, being your softest little bit – to ten being the ---.
No, it probably, was four or five.
So, about half-way?
Yeah, yeah, I didn’t – I wasn’t, like, full on, whack, trying to – trying to damage her.
Constable McMennemin also produced photographs of Mr O’Connell and the hospital records of Ms O’Connell to which I have earlier referred. I do not have to describe their contents further, save to say that, together with the photographs of her injuries, they show injuries that would, in law, constitute actual bodily harm as defined in decisions such as R v Donovan [1934] 2 KB 498 at 509.
In the defence case, medical reports about Mr O’Connell were also tendered. They described that Mr O’Connell suffered from Complex Pain Regional Syndrome and stated Any knock to his left arm and hand would result in very severe excruciating pain. Consequently Mr O’Connell is very protective of his left arm and hand ...
Mr O’Connell gave evidence himself. He described the events before the incident in relevantly consistent terms to the description given by Ms O’Connell.
He then described going into the laundry of his grandmother’s house where he began to unscrew the fittings of the washing machine. He said that Ms O’Connell started pushing him out of the way to get him away from the washing machine. He said he managed to get back to detaching the washing machine and Ms O’Connell just started swinging punches and kicking and carrying on and just going off her head at me and I was just trying to block and ---. And did you have any concern for yourself when she started to throw punches? ---. Yes, I really did. And what was the nature of the concerns that you had? --- Because she was so aggressive and, like, very angry and she was just swinging and kicking so fiercely, I was scared that she was going to get my hand and – and whatever else, because it’s – if she touches that, it’s – it kills. It literally agonises in pain, agonising pain.
He then said that Ms O’Connell “kept going for a while” but he couldn’t continue to “block” her attack, so he hit her with his right hand and she “went flying back” and made a hole in the laundry wall. He described his hit as “just a normal punch to – into her face”.
He said that he then apologised but she said, “No, there’s no sorry” and started punching and “carrying on” again at him. He said that he was scared that Ms O’Connell was going to hit his hand and hurt him even more.
He said that Ms O’Connell then went to wash her face and he left the laundry and told his wife that he had hit Ms O’Connell. He said that Ms O’Connell then came out of the house and started kicking and punching at him. She also started to yell at his wife, suggesting she was lazy. He said that Ms O’Connell then got into her car and he went up to her and leant into the window and swore at her. He then moved away and she drove off. He denied hitting Ms O’Connell again.
He also described what was going on in his mind when he had hit her and said I was just trying to stop her from hitting me, because she was just going ballistic, and stop her from hitting my hand. Like, she was coming very close to that, hitting my hand.
In cross-examination, Mr O’Connell stated that the risk of pain to his left hand was definitely something that was and is at the forefront of his mind.
He also said he could not remember that, when he said he was going to take the washing machine, Ms O’Connell said “You’ll have to go through me”, though he said she could have possibly said something like that. He denied, however, saying “I’ll just go through you”. He also accepted that he did not walk away, saying “I probably should have, but no, I didn’t”.
It was suggested to him that, instead of going into the laundry, he could have walked away, given that Ms O’Connell was being aggressive and he replied “I probably should have, not knowing that she was going to hit into me and whatnot”. He denied that earlier Ms O’Connell had threatened to hit him”, though she was “very aggressive”.
He said that, despite Ms O’Connell being aggressive, he went into the laundry. He had told her to calm down but she did not and he went on with getting the washing machine regardless, he said, “because I didn’t think she would actually hit me”.
He was asked further about the events and then his evidence was And so you could have walked away at that stage?---I could have done a lot of things. Well, you agree that you could have walked away?---I should have walked away. Yes. Instead you threw a punch at her, just one punch?---After she had hit me several times, yes, to try and stop her from hitting me. And you’ve described it today as just a normal punch to the face, if I heard you correctly?---Yes, well – yes. What do you mean by a normal punch? Is that - - -?---Just – well, it’s just one – it wasn’t like – it’s not as hard as I possibly – all my mighty force to hit her, but it was like a decent - - - A decent punch?---Hit, yes. To try and – just enough to try and stop her from coming me at me any more – any further, and – because – yes, trying to stop her from coming at me any further, pretty much. So you tried to hurt her?---No, I did not try to hurt her, no. Okay, so it was – out of 10 what would you give it?---Out of 10? How do you mean, out of 10? Out of 10, you know, one being a – you know, what you do at sparring, and 10 being all your weight?---Yes, well I’m – it would have been about half.
This was, relevantly, the same as he had told the police, as I have set out above (at [411]-[422]).
He denied that he grabbed Ms O’Connell by the head and he denied that he hit her while she was in the car. He denied that he “just lost it and punched her again”.
In re-examination he was asked if backing away was an option that occurred to him that he had and he said Not at the time, no, because it was in a small little confined space, so it was – but when I thought about it – when you think about it after the matter, maybe I – well, you think, ‘Maybe I could have,’ but in that situation it’s – it’s – you don’t think of that because you’re just thinking of someone’s attacking you, and you’re just – you’re trying to stop it from happening. Submissions
Counsel for the parties then made submissions. It was clear that self-defence was a live issue and both counsel addressed it. The credibility of the witnesses was also a matter on which counsel made significant submissions.
The learned Special Magistrate adjourned the proceedings to 11 September 2013 for decision. The decision
On 11 September 2013, the learned Special Magistrate dismissed the charge of common assault, said to be constituted by two other punches to the face while Ms O’Connell was standing near but not in the laundry, and the second charge of assault occasioning actual bodily harm, said to be constituted by the alleged punches to Ms O’Connell while she was in her car. His Honour found, however, that the acknowledged punch by Mr O’Connell in the laundry amounted to an assault occasioning actual bodily harm.
His Honour found that Ms O’Connell had been punched by Mr O’Connell in the laundry and that actual bodily harm had been caused by it. There was no express finding, however, as to how the altercation started.
His Honour primarily relied on the fact that Ms O’Connell received a bloodied nose in the laundry, that the door to the laundry was damaged (which I have not needed to detail above), suggesting “a significant altercation”, the medical evidence, an inference that, because Mr O’Connell, in explaining why he engaged in the altercation, agreed it would have been better if he had not done so, he must have allowed his temper to overtake him, that Mr O’Connell had admitted to his mother shortly after the altercation that he had punched his sister and the photographs of Ms O’Connell that had been admitted into evidence. There was no reference in his Honour’s reasons to the issue of self-defence.
Accordingly, his Honour found the offence proved.
His Honour dismissed the other two charges principally because the evidence of Mr O’Connell was supported by that of his wife and his Honour appears not to have rejected her evidence, thus relying on it to raise a reasonable doubt.
His Honour proceeded to sentence. The prosecutor, however, interrupted to raise the issue of self-defence. The following exchange took place [THE PROSECUTOR]: ... Just out of the abundance of caution, before we proceed to sentence, might I confirm with respect to the charge that your Honour has found proved, might I just confirm that your Honour is satisfied that self-defence as far the Zekovic [sic] test for it has been negatived on the evidence? HIS HONOUR: Yes, I – I didn’t refer to that in my reasons. I did consider that matter. I – as indicated earlier, it was clearly a situation of some confusion. Notwithstanding that, I’m not satisfied that the defence of self-defence is made out, the reasons being that it was open to the defendant to simply leave the area upon his sister indicating that she was not prepared to let him take the machine, and I am also conscious of the fact that the defendant’s physical condition was such that it would be reasonable for a person in that condition to not have put himself in that position. I am satisfied, having heard the evidence, that in fact the defendant did not exercise the sort of prudence that would be expected if one was simply acting in self-defence, but that he in fact engaged in the assaults that are alleged.
The learned Special Magistrate then proceeded to sentence which, because of the issues on appeal, I do not need to address.
The issues on appeal
As argued, there were really three issues on the appeal. 1. Did the learned Special Magistrate give proper reasons for his finding? 2. Did the learned Special Magistrate correctly apply the test for self-defence? 3. Was there evidence that would sustain a finding that Mr O’Connell was guilty of the offence of assault occasioning actual bodily harm?
I shall deal with each of the issues in turn. Reasons
Mr O’Connell raised the question at the hearing of the appeal that the reasons of the learned Special Magistrate did not address important issues in the proceedings.
In the first place, his Honour did not really describe the altercation and what that involved. In particular, his Honour did not make a factual finding about whether Mr O’Connell initially grabbed Ms O’Connell around the neck as she claimed and he denied. This, it was submitted, would be an important matter to place the violence in the altercation into a context and be relevant to the issue of self-defence.
It was also submitted that his Honour did not set out in the reasons whose evidence was preferred, whose evidence was accepted and what evidence was his Honour unable to say whether it should be accepted or not.
It was submitted that the obligation of a magistrate in a summary hearing had been helpfully summarised by Crawford J in Brooks v McShane (1996) 89 A Crim R 195 at 208 as follows: The learned magistrate had a duty, as part of the exercise of his judicial office, to adequately state the findings of fact and reasons for his decision for the purpose of enabling a proper understanding of the basis upon which the findings of guilt were reached: see Pettitt v Dunkley [1971] 1 NSWLR 376 at 382. That duty did not require laborious attention to detail and minute explanations of every step in the reasoning process that led to the eventual conclusion that the respective charges were proved. But the duty ‘at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues’: see Soulemezis v Dudley (Holdings Pty Ltd (1987) 10 NSWLR 247 at 259.
As Malcolm CJ, with whom Murray and Anderson agreed, said in Wood v Marsh (2003) 139 A Crim R 475 at 485; [41] It is a fundamental requirement of natural justice that a tribunal of fact, particular one exercising criminal jurisdiction, should ensure that adequate reasons, whether for conviction or for sentence are given at the time the decision is made and properly recorded: cf Harling v The Queen (1997) 94 A Crim R 437 at 443 and 444 per Anderson J; and Ladlow v Hayes (1983) 8 A Crim R 377 at 388 and 389 per Walters J.
Thus, there was no factual finding on important questions about which there was differing evidence. Reference was made to Ms O’Connell’s actions during the altercation. She agreed that she punched and kicked at Mr O’Connell but she said her punches and kicks did not connect with him, whereas Mr O’Connell said that she did actually kick him. A finding on such a matter was also important for the issue of self-defence.
It was submitted that the failure to make the required findings of fact and give adequate reasons was an error of law in itself. That has been so held in a number of cases: Pettitt v Dunkley [1971] 1 NSWLR 376 at 382; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278-80; T v Medical Board of South Australia (1992) 58 SASR 382 at 408; Fleming v The Queen (1998) 197 CLR 250 at 260; [22]; Papps v Police (2000) 77 SASR 210 at 215; [23]; Gannon v Police (2005) 93 SASR 289 at 294; [22].
As many of these decisions make clear, the reasons, especially in a summary jurisdiction do not need to be elaborate or lengthy, though they must articulate the essential ground or grounds on which the decision rests. A detailed explanation may not be required, but some explanation is required. Thus, whether there is an error of law will depend on the circumstances of each case.
The respondent submitted that the findings of the learned Special Magistrate were adequate. So far as the fact of the punch and the fact that the injury caused was actual bodily harm, this was clearly so and his Honour did set out the appropriate reasons.
So far as the question of self-defence is concerned, that was not so. His reasons for finding that self-defence was not “made out” were inadequate. I shall deal with that further in the second ground of appeal.
In my view, this ground is made out. Self-defence
It is clear that the issue of self-defence was squarely raised both on the evidence and comprehensively in the submissions. Curiously, the learned Special Magistrate did not deal with it in his decision at all. Indeed, as noted above (at [666]), it was not until the prosecutor raised the issue that his Honour actually addressed it. This is indicative of the issue not being considered by his Honour in formulating the reasons for which he had reserved the decision.
When, as a result of the prosecutor’s prompting, his Honour did address the issue, his remarks were problematic.
In the first place, his Honour indicated that he was “not satisfied that the defence of self-defence is made out”. This might suggest that his Honour has reversed the onus which, of course, requires the prosecution to negative self-defence, not for a defendant to prove he acted in self-defence.
There is no doubt that counsel, in their submissions, identified correctly the law as to self-defence, the onus and the test to be applied. It is not, however, sufficient to suggest, especially where there has been a passage of time between the submissions and the reasons, that a judicial officer is simply adopting those submissions and, therefore, applying the law correctly, without that being expressed or a necessary inference. There???? were neither apparent in his Honour’s reasons.
The test is now authoritatively and definitively laid down in Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645 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 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.
Given that, as the Court said, that question is “quite simple”, it seems to me that where a judicial officer does not phrase the question are formulated by the High Court, careful attention needs to be paid to how the judicial officer actually articulates it instead, or addresses the issue, to ensure that it still complies with the formulated test.
Here, his Honour simply referred to the failure of Mr O’Connell to leave the laundry upon Ms O’Connell indicating that she was not prepared to let him take the washing machine. His Honour also referred to the fact that it would be reasonable for a person with Mr O’Connell’s disability not to have put himself “in that position”, though precisely what was “that position” was never stated. These matters, however, were not related to the elements of the test as formulated by the High Court.
As there was no finding as to whether Mr O’Connell grabbed his sister around the head, there is no factual finding about how the altercation started and this is very relevant to any belief of Mr O’Connell about his situation and whether such belief was reasonable.
Further, the question of retreat is not decisive, but only part of the relevant consideration if, after having found that the defendant had the relevant belief, it was reasonable in all the circumstances.
As long ago as 1958, in R v Howe (1958) 100 CLR 448 at 462-3, Dixon CJ, with whom McTiernan and Fullagar JJ agreed, said The view of the Supreme Court appears also to be correct as to the position which the modern law governing a plea of self-defence gives to the propriety of a person retreating in face of an assault or apprehended assault before resorting to violence to defend himself. The view which the Supreme Court has accepted is that to retreat before employing force is no longer to be treated as an independent and imperative condition if a plea of self-defence is to be made out.
It is to be noted that his Honour used the same formulation, “self-defence is to be made out”, as used by the learned Special Magistrate. Whether such a formulation has survived further judicial consideration is not clear. Perhaps in the light of this, I should not accept that the learned Special Magistrate reversed the onus of proof as I suspected.
I have looked at the reasons of the learned Special Magistrate carefully and cannot find any finding of what Mr O’Connell has been found to have believed or not believed. His Honour was required to address Mr O’Connell’s clear statement in his evidence about that very matter. This, of course, is also relevant to the question of whether the reasons were adequate.
The next question is whether the belief was reasonable and that must require it to be reasonable at the time it was held, that is when Mr O’Connell decided to punch his sister.
Whether he was foolish or imprudent to attempt to take the washing machine in the light of his sister’s intransigence, whether he could have simply then walked away and returned later to collect what was rightfully his, is not determinative of the reasonableness of his belief at the time of the punch which, as the evidence appears to me, came well after these decisions were made. It is, of course, relevant to that.
It does not seem to me, however, that a person who takes a risk that violence may be offered to him or her is necessarily prohibited by taking that risk from justifiably responding in self-defence to violence if actually offered. Each case must depend on the circumstances.
In any event, in this case, Mr O’Connell expressly said “I didn’t think she would actually hit me”. Unless the learned Special Magistrate rejected that evidence, and it was not addressed in his reasons, the basis for the finding of the asserted need for retreat seem to be undermined and, perhaps, substantially.
The difficulty here is that we have no relevant findings. Mr O’Connell said he was disconnecting the washing machine and at that time he was being kicked and punched. He said that, to protect his arm, he punched Ms O’Connell. He said that it happened after he started to disconnect the washing machine.
Ms O’Connell admits that she kicked and punched at Mr O’Connell, but says it was only because she was grabbed around the head by Mr O’Connell.
There was no finding in his Honour’s reasons of what the situation was at the time of the punch. On both versions of the evidence, this was after Ms O’Connell had been “indicating that she was not prepared to let him take the machine”.
The respondent submitted that the learned Special Magistrate found that there were no reasonable grounds to support a belief that the appellant was required to act in self-defence. Unfortunately, I cannot find in the passage cited where such a finding is made that is referrable to the time when Mr O’Connell actually punched Ms O’Connell, which is the relevant time and which was after the time to which his Honour refers.
That, at the time when he punched Ms O’Connell, Mr O’Connell was being punched and kicked requires consideration of whether his left arm was likely to be at risk at that time and he could reasonably have so believed and, therefore, defence of it required, because, for example, it may have been reasonable for him to believe that, even in the course of retreat, he and his arm may have still been at risk, namely while he was retreating. Again, that was simply not addressed.
It was, of course, open to the learned Special Magistrate to find, as the respondent submitted, that Mr O’Connell’s belief was not reasonable, but only if his Honour made the necessary factual findings about the circumstances at the relevant time. This is what his Honour did not do.
In my view, this ground is made out. Unsafe and unsatisfactory
Mr R Livingston, who appeared for Mr O’Connell both at the hearing in the Magistrates Court and on appeal, submitted that had the Magistrate properly applied the law, a verdict of not guilty to the subject charge was inevitable.
Unfortunately, I cannot agree.
Where there is such a ground as relied upon by Mr O’Connell, the High Court has identified the question that must be asked by the appeal court. In M v The Queen (1994) 181 CLR 487 at 493 Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (Footnotes omitted)
The misapplication of the law of self-defence, however, does not lead to an inevitable acquittal.
It is fair to say that the violence here seemed to erupt spontaneously. While Ms O’Connell agreed that she was kicking and punching at Mr O’Connell, her evidence was that the punches were not connecting with him. She considered that, instead, she should kick him, but she said that, apart from when she “actually did kick him in the backside” she was not sure that the kicks landed, though she had referred to a kick “grazing his thigh”.
It may have been appropriate for the learned Special Magistrate to find that the kicks were not landing on Mr O’Connell and, in any event, that they would have been unlikely to be landing on his left hand, so that the risk he saw to his left hand was not, in the circumstances, one against which he reasonably had to defend himself. I make no finding about that, but it does seem to me that, depending on issues of credibility, such a finding may have been open. I note that the police were not convinced that that injuries said by Mr O’Connell to have been sustained by him from the kicks were so caused.
Mr O’Connell gave quite different evidence. His evidence may, or may not, be accepted at trial. It is not clear whether the learned Special Magistrate did so. Even if he did reject Mr O’Connell’s evidence, his Honour still needed to find that Ms O’Connell’s account was able to be accepted beyond reasonable doubt. It is not, of course, a matter of simply picking between the two versions: Liberato v The Queen (1985) 157 CLR 507 at 515.
I am not satisfied that an acquittal, though clearly open and, perhaps, quite strongly indicated, was inevitable, depending so much on the facts found and that depended heavily on credibility.
Accordingly, I do not uphold this ground of appeal. Disposition
Based on the findings I have made, the appeal must be upheld.
Mr O’Connell sought an order acquitting him. As I have not upheld the third ground argued, that is not an appropriate order to be made.
The proceedings must be remitted to the Magistrates Court to be heard according to law should the prosecution wish to proceed. I certify that the preceding one-hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 4 June 2014
Counsel for the appellant: Ms S McMurray
Solicitor for the appellant: ACT Director of Public Prosecutions
Counsel for the respondent: Mr R Livingston
Solicitor for the respondent: A B Vincent Northside Solicitor
Date of hearing: 8 November 2013
Date of judgment: 4 June 2014
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McMennemin [2014] ACTSC 112
(1998) 197 CLR 250
(2005) 93 SASR 289
(1985) 157 CLR 507
(1994) 181 CLR 487
(2000) 77 SASR 210
(1958) 100 CLR 448
(1987) 10 NSWLR 247
(1992) 58 SASR 382
(1987) 162 CLR 645