Peverill v Crampton [2010] ACTSC 79

4. Although there were factual issues between the parties, the broad outline of the factual background was not in dispute.

5. The complainant and the appellant appeared to have had a history of animosity between them. The details were not given and are probably irrelevant.

6. The appellant came home from an appointment at The Canberra Hospital. As she walked past the complainant's residence she heard something that she considered was insulting to her and she made a comment back. The complainant came to her front door and words were exchanged between her and the appellant. The complainant's daughter also came out of the house at some stage in an aggressive manner.

7. The exchange of words continued and the complainant and appellant came close together and there was physical contact which resulted in the complainant falling over and the appellant also falling over either beside or on top of the complainant.

8. The complainant moved to get up and moved her left arm. The appellant bit the complainant on her left wrist. A friend of the appellant came to help her up and gave her a mobile phone with which she contacted the police. The complainant's daughter helped her mother up and also called the police. The police attended and spoke to the parties and the appellant was subsequently charged. Photographs of the scene and of the complainant's injuries were taken.

9. A summons was issued to the appellant returnable on 2 April 2009. The matter was then listed for hearing on 29 September 2009 and was heard by the learned Magistrate.

10. The prosecution called three witnesses: the complainant, a neighbour of the complainant and a police officer. A statement of the complainant's daughter was also tendered as she had died prior to the hearing. The appellant gave evidence and also called the male friend, with whom she had returned home on the day, to give evidence.

11. After hearing submissions, the learned Magistrate found the offence proved and convicted the appellant and sentenced her by making a Good Behaviour Order, with security in the sum of $200, for 12 months.

12. In the course of submissions, the issue of self-defence was raised, initially by the prosecution. The prosecution referred to the decision of the High Court in Zecevic v Director of Public Prosecutions (Victoria) [1987] HCA 26; (1987) 162 CLR 645 (Zecevic). The following exchange then occurred:

MR PONT: ... Where the test that they have put together is virtually for a self ...

HIS HONOUR: They didn't put a test together at all.

MR PONT: Sorry, your Honour.

HIS HONOUR: The test, as set out in a joint judgment of their Honours.

MR PONT: Yes, your Honour, is that an accused has to be, reasonably believed, which [sic] they were being threatened. It's a subject [sic] we test on the person and that there has to be no question in the defendant's mind that that was going to occur.

13. This appears to be a reference to the approach that Wilson, Dawson and Toohey JJ (with whom Mason CJ expressly agreed) took in Zecevic when their Honours said (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. Stated in that form, the question is one of general application and is not limited to cases of homicide. Where homicide is involved some elaboration may be necessary.

14. The defence submission to the learned Magistrate was that:

Seeing [the complainant's] left arm coming across her body, about to strike her in the face, she acted in the only way she could at that point, given her position and given where she was lying on the ground. That to stop that assault from happening, she took action to stop the punch from landing, the arm from connecting with her face, by biting down and stopping that movement. Which it did do so. That movement did stop that assault.

15. The learned Magistrate expressed scepticism about whether the blow was evaded by the action of the appellant and suggested that, dynamically, the incident could not have happened as described by the appellant. His Honour also drew attention to the following questions and answers in the transcript of the taped interview police had with the appellant:

Q187: How do you feel about biting [the complainant], at the time and after it, after biting her, after it?

A187: I felt bad after, I didn't mean to go that far, you know, I didn't want it to go that far. You know, the - she's an older woman, and I'm a younger woman, but still, you know, we are grown women, should be able to talk about it.

Q188: But at the time?

A188: I was really angry, and I just wanted to get her off me, and, yeah. I mean, yeah, she had been in her nightie, and drinking all day, and it wasn't very pleasant.

16. The defence submissions also relied on some discrepancies between the evidence of the witnesses. It was also noted that there was "a history between both parties".

17. His Honour accepted that there was animosity which, he noted "has coloured the evidence given".

18. His Honour was satisfied of the genesis of the matter as set out above (at [6]) and that the complainant tried to withdraw from the argument but the appellant pushed her and that the appellant and the complainant ended up on the ground.

19. His Honour did not accept that the appellant feared injury and rejected the description of the incident given by the appellant.

The test of self-defence is, [sic] as is set out in Zecevic and, in my view, it hasn't been established in this case. I'm satisfied that the requisite - agree [sic] that the defendant assaulted the complainant .... I'm satisfied, despite her assertion that she never drew blood, that blood was drawn and that that amounts to actual bodily harm.

I therefore find she assaulted and thereby occasioned actual bodily harm. The offence is proved.

21. The appellant commenced the appeal by filing a Notice of Appeal on 29 October 2009. The grounds stated in it were:

1. The Magistrate made an error in law in his interpretation of the self-defence test in Zecevic v Director of Public Prosecutions [1987] HCA 26.
2. His Honour gave insufficient weight to the appellant's evidence that she believed that it was necessary in self-defence to do what she did.
3. His Honour should have been left with a reasonable doubt.
4. The sentence was manifestly excessive in the circumstances.

1. The conviction and sentence be set aside.
2. The appellant be acquitted of the offence of assault occasioning actual bodily harm.
3. In the alternative, the appellant be released without conviction on a Good Behaviour Order pursuant to section 17 of the Crimes (Sentencing) Act 2005.
4. Any other order this Honourable Court deems appropriate.

23. The Supreme Court has jurisdiction to hear appeals against convictions and sentences by persons convicted by the Magistrates Court under Pt 3.6 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act) by virtue of ss 207 and 208(1)(b) and (e) of that Act.

24. Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seem to be as follows:

1. The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong.

2. The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.

3. The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate's reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.

4. The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.

5. The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal.

6. In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice.

7. The appellate court should determine the correct judgment for itself and only order a retrial if it cannot.

25. Applying these principles, I then turn to the evidence adduced before the learned Magistrate.

26. The complainant was a pensioner resident in a duplex home in a residential area where there were some other duplex residents in the complex in which the home stood. There was a path outside her home leading to some other homes.

27. The evidence of the complainant was as follows. On 9 December 2008, she was in her lounge room discussing Christmas presents at about 3.00 pm with her daughter and a neighbour. She heard the appellant call out her name from outside her home. She went out to the front of her home and said "What are you talking about?", and the appellant replied, "Don't call me a big mouth". The complainant said, "It wasn't aimed at you".

28. The complainant's daughter then came out and there was some conversation with the appellant, but it became heated and the complainant came between her daughter and the appellant. She then told her daughter to go inside. She felt something on her back and then turned round and found the appellant was "about two inches off my face". She said to the appellant, "Go home" and the two fell over, the appellant on top of the complainant. The complainant then said that the appellant bit her left wrist and that the bite drew blood.

29. The complainant explained that the appellant had pulled the top of the complainant's dress and because she had a bad knee, she fell over. She tried to push the appellant off, using her left arm. The next thing she knew was that her right arm was pinned under her and the appellant was biting her left arm. Her neighbour came out shortly after and helped her back inside where her daughter had rung the police.

30. In cross-examination, the complainant said that she had not seen the appellant outside the window walking to her unit. She denied saying loudly "There goes the big mouth". She explained that she had said to her neighbour "thank you big mouth" but this related to an unwanted disclosure about a Christmas present for the complainant's daughter. She agreed that the appellant had called out to her "Shut up because you're nothing but a drunken grandmother" as she went to her front door.

31. It was put to her that she was abusive to the appellant but she denied that saying that she merely said "What's going on".

32. She also denied seeing the appellant wearing wrist supports, but there was no further evidence about that. She did accept that, as well as her neighbour with whom she had been talking, her other neighbour (her next-door neighbour) also came out to the altercation.

33. The complainant was also asked about the layout of the area and accepted that she could not see the front door of her next-door neighbour's house because of a six foot brick wall. She agreed that her next-door neighbour would not be able to see the area where the altercation was from her house.

34. The complainant agreed that she was of a bigger build than the appellant. Some further conversation was put to her which the complainant denied to an extent.

35. It was then put to her that she had pushed the complainant in the chest, but she denied this. A sequence of events was put to her with which she partially agreed but she denied touching the appellant, except possibly when falling backwards. She did dispute that the appellant fell to the side of her, saying that she fell on top of her.

36. The complainant denied trying to hit the appellant when they were on the ground and suggested that the position of the two meant that this could not have occurred. She accepted that the appellant was calling out to her friend to come over and help her or call the police.

37. She denied swinging her left arm at the appellant and confirmed that she was right-handed.

38. The next witness was the next-door neighbour, who came out to see what was going on a little after the altercation had begun. Her evidence was as follows. She heard a commotion outside and listened for a short time. She heard someone yelling out "You're nothing but a fucking alcohol scumbag". She then saw the appellant "go flying at" the complainant with her palms out and made contact with the complainant's chest and they both toppled over into the complainant's garden when she lost sight of them. She did see the appellant on top of the complainant.

39. She waited for about 20 minutes and then went outside to see if the complainant was alright. She then saw a clear bite mark on the complainant's left wrist.

40. In cross-examination, she said that, despite the brick wall and not being able to see the complainant's front door, she had a clear view of the area where the altercation occurred. She was challenged as to what she could see but maintained that because of her big lounge room window, she had a clear view if she stood at the side of it and looked out.

41. The next-door neighbour said that she did not hear the actual words said but said she did hear the "commotion". She did not see the appellant initially walking to her unit. Her attention was only drawn to the matter because she heard the parties yelling.

42. When asked about the fight, she denied that the complainant had grabbed the appellant's wrists and pulled her over, that the appellant was lying next to the complainant or that she saw the complainant attempt to strike the appellant with her left arm.

43. She also denied that the appellant was wearing wrist supports. She could not remember what the complainant or appellant were wearing. She accepted that, in the struggle, the two moved out of her sight.

44. The witness was shown a photograph of the path. She pointed to the limits of her line of sight, but unfortunately, that was neither marked on the photograph reproduced in the Appeal Book nor clearly described in the transcript.

45. The witness then said she called triple 0 and told the police that her neighbour was "yelling, swearing, abusing my other neighbour". She did not say to the police that they had fallen into the bushes.

46. Constable Brooke Crampton next gave evidence. She responded with another constable to a call to attend at the complainant's premises. She spoke to the appellant and to the complainant's daughter.

47. The appellant told her that she had been in a fight with the complainant, that it became "physical" and that the complainant had pushed her.

48. The constable overheard the daughter of the complainant say in reference to the appellant, "This is the one who bit my mother". The constable asked the appellant "Did you bite [the complainant]?" to which the appellant said "Yes, I bit her after she assaulted me".

49. She then went to the complainant's home and saw three puncture wounds in the complainant's left wrist which were "bleeding, seeping". The marks were consistent with a bite mark.

50. The constable confirmed she took a statement from the complainant's daughter on 2 January 2009. The daughter died before the hearing in the Magistrates Court.

51. On 6 January 2009, the constable and the other police officer interviewed the appellant and the interview was recorded and transcribed.

52. Both the statement of the complainant's daughter and the transcript of the interview were tendered.

53. Constable Crampton also obtained digital images of the complainant and her injuries and these were tendered. Copies were reproduced in the Appeal Book and I inspected them.

54. In answer to a question from the learned Magistrate, she said that she did not examine the appellant's body, but did ask whether she had any injuries and the appellant said she did not.

55. In cross-examination, the constable said she could not recall whether the appellant was wearing wrist supports, though she was wearing them on 6 January 2009 when she was interviewed.

56. She accepted that the sequence of events described by the appellant when she spoke to the constable at the scene on 9 December 2008 was the same as the sequence of events described in her interview as was her explanation.

57. The constable also spoke to the complainant's neighbour who had been in the complainant's house but she declined to be involved and did not make a statement.

58. The constable was asked about what the other neighbour could have seen but was unable to say.

59. Constable Crampton also accepted that there were differences in the versions of events given by the three prosecution witnesses.

60. As noted above (at [52]), the transcript of the police interview with the appellant was also tendered. I read it carefully.

61. In it, the appellant told police that the complainant had "started it". She said that she and her friend had heard her call the appellant "mouth of the south or something like that" and that she had yelled back "Shut up, I don't want to put up with it today".

62. The appellant then said that the complainant had come to the front of her home and "started harassing me", so she went up to her, intending to get her to go inside and told her to do so.

63. She described a further exchange of words in which she did say that she had replied to the first statement by the complainant by saying, "Shut up I don't want to deal with you alcoholics today."

64. She stated that the complainant's daughter had come out "fists ablaze" and that the complainant had pushed her out of the way. She stated that she continued to her home, pushed her pram inside and then went up to the complainant, saying "Look, I don't want to deal with it" and said something along the lines of "What kind of life do you expect to give your grandchild, with the behaviour that youse are, you know, at the moment that I have got to put up with, that my son has to put up with".

65. She stated that the complainant had "sort of" pushed her out of the way. She agreed that she had spoken to the complainant face-to-face. She stated that the complainant then pushed her and she pushed her back by putting her two hands out in front of her and made contact with the complainant's back. She went on that the complainant had turned and grabbed the appellant's wrists, lost her balance and they had both fallen over. She said that in doing so, she suffered scratches and bruises.

66. The appellant said she felt threatened as though the complainant was trying to punch her in the face because her hand was "coming around", trying to swing around at her with her left wrist.

67. She then said she "sort of moved, and bit her". She said that she bit down as hard as she could and then let go. She stated that the complainant screamed "Assault, assault, [the appellant] just bit me, I'm going to call the cops on you and charge you with assault."

68. The appellant then noticed that the neighbour (who had been in the complainant's home at the beginning of the incident, but who declined to be interviewed by police) came over and grabbed the complainant, pulling her up. She noticed then also that her friend was there and she called to him to get her mobile phone.

69. She further stated that when the complainant's left wrist was coming round, it was a closed fist which, she stated, was "why I felt threatened," and that this was the only reason she bit her. She also said what is set out above (at [15]).

70. The statement of the complainant's daughter was tendered. In it she stated that she lived with her mother, the complainant, and knew the appellant as living in a neighbouring house in the complex.

71. She stated that she had been sitting in the lounge room of her (and the complainant's) home when she heard the appellant "yelling" out in front of the house. She stated that she had said something of which no-one else had given evidence. She saw her mother go to the front door and the appellant and the complainant exchanging words. She said she heard her mother say words to the effect of "Stop mouthing off it'll [sic] all be sorted at the Tribunal".

72. She then walked to the front door and saw the appellant and the complainant standing in the garden in front of the unit, the appellant being very close to the complainant. She walked towards them and noticed the appellant holding the complainant's wrist. She said to the appellant "Just go home and sort it out at the Tribunal" and stated that the appellant then started yelling at her. The appellant then grabbed her forearm and dug her fingernails into it, but the complainant's daughter made her let go and she went back to her unit.

73. She stated that she saw the appellant push the complainant with two hands and saw her move backwards and lose her balance. She also saw that, as a result of the push, the appellant's body moved forwards and landed on her mother to her right. The appellant landed with her right leg over the complainant's legs. She heard the appellant call to a male friend who came over and said "Get off [the complainant]".

74. The daughter saw her mother move her left arm across her body to get up and saw the appellant grab the arm, pull it to her mouth and bite it. The daughter then went inside and called the police.

75. A short time later the complainant returned to her unit and her daughter saw that the skin on her left forearm was broken and bleeding.

76. The appellant then gave oral evidence as follows. She had come by bus from the Canberra Hospital with her son and her friend. They walked from the bus and as they came home they heard yelling from the complainant's house: "Mouth of the South" or words to that effect. She could not identify it as being said by the complainant. She says she called back in a raised voice "Please not today. I don't want to deal with you alcoholics today."

77. As she continued walking, she saw the complainant at the front of her house who said "You're nothing but an Ice-fiend". That, she said, made her upset and angry. She stormed up to her home and turned round and said "What kind of life have you given your grandchildren, you know, with the behaviour that has been going on. The loud behaviour, the alcohol". The allegation that the complainant called the appellant an "Ice-fiend" was not put to the complainant in cross-examination, nor was it mentioned in the police interview with the appellant.

78. As she said this, the complainant's daughter came out with her fists up, as though she was ready to fight. She then said that the next thing she knew, the complainant was pushing her in the chest and she slightly lost her balance, but then regained it and she pushed the complainant in the back. The complainant turned around and came towards her. She says the complainant lost her footing, fell down and pulled the appellant down with her by grabbing both her wrists.

79. The appellant then said that she landed on her side with scratches on her elbow when she tried to avoid landing on top of the complainant and landed on the right of the complainant. She then said she tried to get her hands free and get up and the next thing she saw was the complainant's left wrist come around, close-fisted, at her face. She says she just turned her head slightly and bit down on the wrist and let go straight away. She said that she felt that the complainant was going to punch her in the face, "smack bang in the middle." She says her biting "was like an instinct". It was then she called out to her friend to get her mobile and added "they've assaulted me". He brought the mobile over and she called triple 0.

80. The appellant denied that she was ever very close to the complainant's face or that she touched the complainant's clothing. She also denied falling on top of the complainant. She denied that the complainant's right arm was pinned beneath her.

81. There was, in the examination-in-chief, no mention of wrist supports being worn by the appellant.

82. In cross-examination, the appellant expressed assurance that the comment at the beginning of the incident was directed at her because "[i]t was that loud that you could hear it".

83. She acknowledged that she was not calm but said "None of us were". She admitted that after the complainant had called her an "Ice-fiend" she became "fired-up ... angry". If that was what fired her up, it is curious she did not mention it to the police. She said that, after the complainant had pushed her, the complainant turned around "like she thought it was finished". The appellant then pushed her in the back "to defend myself". This is also curious, for if "it was finished" there was no need of defence. She said that she had RSI in the wrists and so could not push the complainant as hard as she was pushed. She then said that the complainant grabbed her wrists and they had both fallen over, the complainant pulling the appellant over.

84. The appellant then said that the complainant swung a hand over which she believed was going to come in contact with the middle of her face. It was put to her that if the complainant was on her right side, a fist from the left hand of the complainant must have gone past the appellant's mouth and, therefore, her face, if she was to bite the complainant's wrist. She also denied that she drew blood with the bite. She also denied that it was deliberate, despite saying in her recorded interview "I was really angry, and I just wanted to get her off me." She had also said "I felt bad after, I didn't mean to go that far".

85. The appellant's friend was the last to give evidence. He described the arrival of himself and the appellant. He also heard someone shout from the complainant's house "Mouth from the South". He said that as they came closer, the complainant emerged and accused the appellant of being on Ice. He then described yelling between the two. He then took the appellant's son into the appellant's house.

86. When he returned, he saw that the complainant's daughter had come out with "fists come out flying for [the appellant]." He saw her throw punches towards the appellant.

87. He turned his back for a moment and then saw the appellant on the ground. He saw the appellant on top of the complainant not beside her. He then said he saw the complainant attempt to punch at the appellant while the appellant was on top of the complainant. He seemed to refer to more than one punch being thrown by the complainant. He said that the appellant pulled herself up and the complainant was helped up by her neighbour. He did not mention the appellant biting the complainant. He did not see the interaction between the complainant and the appellant which led to them being on the ground.

88. In cross-examination, he denied that the complainant was at the side of the appellant, but confirmed that the appellant was on top of the complainant.

89. The appellant, represented by Dr B Boss, made four points:

(a) the learned Magistrate erred in his application of the test for self-defence;

(b) the learned Magistrate gave insufficient weight to the appellant's evidence that she believed that it was necessary in self-defence to do what she did;

(c) the learned Magistrate should have been left with a reasonable doubt; and

(d) the sentence was manifestly excessive in all the circumstances.

90. In support of the first and second grounds, the appellant pointed to the decision of the learned Magistrate where his Honour said:

The defendant said she feared injury, I don't accept that. I don't accept that she, having re-engaged in the dispute, having heard the evidence, I find it inconceivable that the defendant endeavoured to avoid a blow to her head. No evidence was given that the blow struck.

The defendant didn't give any evidence as to any injuries she'd suffered, except in a record of interview she said she had scratches. She did give evidence that she had a scratch on the elbow, something that was not shown to the constables or no evidence given to the constables at the investigation.

His Honour then proceeded as set out at [20] above.

91. The appellant submitted that the mere mention of Zecevic was insufficient to show that his Honour was applying the correct test.

92. The appellant further submitted that it appeared that his Honour relied on the fact that no blow was actually struck to establish that the appellant did not hold the necessary belief as set out in Zecevic in the passage cited above (at [13]) and this was an incorrect application of that test.

93. The appellant relied on her evidence which was submitted to be that she believed it was necessary to do what she did in order to protect herself. Her evidence was, in fact, as follows:

Yes, and as you landed and she landed - she landed, you landed, in that order - what happened then? ... I was trying to get my hands free, to try and get up, to get away from her and, next thing I saw her, her left wrist come around, close-fisted at my face, and I just turned my head slightly and bit down on her wrist, and let go straight away.

And, you saw her left hand coming across her body? ... Yes, coming towards my face. I felt that she was going to punch me in the face.

Whereabouts did you think you'd be punched? ... Smack bang in the middle.

You indicate your nose, mouth ...? ... Yes, nose, eyes anywhere here. Because it was coming straight for me.

And, was [the complainant's] left hand open or closed? ... It was closed as it was coming for me. I remember that clearly.

And you expected to be punched in the centre of your face and you then bit down on her arm to stop her? ... Yes

Why did you bite down? ... It was like an instinct. I just, a split second, my head clenched and I bit down and then let go. I didn't even think about it. As soon as I realised what I'd done, I let go and moved back away from her.

94. Similarly, in cross-examination, the appellant said:

And you caught her wrist in your mouth? ... Yes, I turned my head out of - I don't know, split second - I didn't even think about it. I turned my head so she couldn't land, and I could just bite her or something. I didn't know what it was going to do. I just wanted to get out of the way.

95. However, she did also say in cross-examination:

MR PONT: In addition to the thing, I put it to you that it was a deliberate act, that ...? No, it wasn't. It was not a deliberate act at all.

96. The appellant's submission was not, however, that the biting was without intent; it was expressly that it was in self-defence. This is difficult, having regard to the question of what precisely was the content of any belief, in the light of evidence such as this.

97. The appellant submitted that the learned Magistrate did not, in the light of this evidence, turn his mind to whether there were reasonable ground for the appellant's belief.

98. In addition, the appellant submitted that the appellant's friend gave evidence that he "saw [the complainant] attempted to punch" the appellant and this was not the subject of challenge in cross-examination. While that is true, this witness did say in cross-examination that he did not see the actual scuffle between the complainant and the appellant. He also said, to the contrary of what the appellant said, that the appellant was on top of and not to the side of the complainant.

99. Thus, the appellant's complaint was that the learned Magistrate did not analyse the evidence and explain why his Honour rejected the evidence of the appellant and her witness. His Honour did not decide whether the appellant held the belief necessary to raise the issue of self-defence and, if held, whether it was held on reasonable grounds.

100. Finally, the appellant submitted that the sentence was manifestly excessive in all the circumstances. The appellant has, it appears, no criminal record and is a single parent with the care of two children, though she clearly obtains some support from the male friend who also gave evidence.

101. The respondent, represented by Mr T Hickey, submitted that the learned Magistrate was clearly aware of the test in Zecevic. As he noted, his Honour had, early in the argument pointed out that there was no longer a requirement that the appellant had had to retreat as far as possible before self-defence was properly raised: Zecevic (at 663).

102. The respondent further submitted that, in any event, the learned Magistrate had rejected the appellant's version of events. His Honour had done this principally because he found that the events as described by the appellant could not have occurred. As his Honour noted, the wrist where the appellant bit the complainant was behind (i.e. furthest from the appellant) the fist which the appellant said was coming towards her, and thus, either the occasion for escaping the punch and deflecting it must have passed before the biting could occur or it was not an evasive measure at all. That is to say, the fist, which was said to be coming full-frontal at her face - her nose, eyes, mouth (see [93] above) - must have missed her mouth (and nose and eyes) if she was physically able to bite the wrist which was behind the fist.

103. It is true that the full analysis is not to be seen in the reasons for decision of the learned Magistrate but, was clear from the argument that preceded it. In particular, the respondent referred to the following exchange with the appellant's counsel at trial:

HIS HONOUR: She couldn't possibl[y] have taken evasive action. She must have taken the blow full on, somewhere. If it was a blow that was aimed and delivered at her.

MS CORY: On her evidence, your Honour, [the complainant's] left arm was coming across her, [the complainant's] body, and about to strike [the appellant's] head and, in stopping that movement and stopping the hand from striking her head, she bit down on the arm.

HIS HONOUR: Yes, so the wrist must have hit her in the mouth, with the force that she, trying to act in self-defence against. It didn't just stop. The arm just didn't stop in mid air.

MS CORY: No, it's a moving action. Her arm is moving ...

HIS HONOUR: Yes, a moving action, it must have hit her.

MS CORY: ... as it is moving towards her, she has bit down, because she fears that if she doesn't bite, she is going to be punched in the face, in the nose.

HIS HONOUR: But that's impossible. As the prosecutor indicated.

104. The respondent submitted that it was clear that the learned Magistrate had accordingly rejected the evidence of the appellant. It was also inconsistent with much of the other evidence.

105. For example, the respondent submitted that the evidence of the appellant's male friend was not helpful as it was not clear to what he was referring in the evidence relied on by the appellant. The respondent further relied heavily on the statement of the complainant's daughter, which had been admitted by consent and which clearly stated:

I then saw mum swing her left arm across her body to try and get up. [The appellant] then grabbed hold of mum's left arm with both of her hands and pulled it towards her mouth. She then used her teeth to bite mum's left forearm.

106. Similarly, the evidence of the relative positions of the appellant and the complainant on the ground given by the appellant was inconsistent with the evidence of all the other witnesses, including that of her male friend.

107. Thus, the respondent submitted, the learned Magistrate was attune to the issue of self-defence but the issue did not really arise because the factual basis for it, namely the need for the appellant to protect herself from a blow to the head, was not accepted and the learned Magistrate said this expressly.

108. As to the issue of sentence, the respondent submitted that the sentence was within range.

109. The first complaint that the appellant makes is, it seems to me, a good one, namely that the reference by the learned Magistrate to the case of Zecevic was inadequate. It is not as if the central test articulated in the judgment (reproduced at [13] above) is long or complex. It can be stated simply. Indeed, it was simply stated by the High Court.

110. There were, however, a number of references to Zecevic in the proceedings which may explain why his Honour seemed to use the shorthand reference simply to the case name. Thus:

(a) it appears that a copy of the decision was handed to the learned Magistrate;

(b) the prosecutor summed up the test in the passage cited (at [12] above);

(c) this was followed by the following exchange, showing that the learned Magistrate was alive to the issues in the High Court's decision:

MR PONT: ... You've heard today that there were plenty of opportunities where the defendant could have avoided the situation ...

HIS HONOUR: The test is not whether you have to retreat;

(d) and the learned Magistrate, as noted (at [12]) above had referred to the test in the joint judgment in the High Court.

111. Despite these references, which showed that his Honour had an understanding of at least some aspects of the decision, it cannot be assumed that his Honour would necessarily have accurately explained or applied the decision from that.

112. Crispin J was presented with a somewhat similar situation in Vann v Palmer [2001] ACTSC 12 where the Magistrate from whose decision the appeal was taken said (at [18]):

Now if I'm wrong in finding the defendant was the aggressor and struck the first blow, then I find on the tests as laid down in Zecevic that his claim of self-defence failed.

The judgment was delivered extemporaneously and her Worship did not, of course, have the advantage of correcting any inexactitude of language as may be done during the proofreading of written judgments. In these circumstances it is particularly important to consider this statement in the context of the other portions of the judgment.

114. His Honour ultimately rejected the challenge to this portion of the decision, the subject of the appeal. In the first place, it does appear from his Honour's decision (at [3]) that the Magistrate had earlier in her reasons articulated the correct principle. Nevertheless, his Honour also relied on the fact that the Magistrate had already found that the appellant had been the aggressor and had struck the first blow.

115. That is somewhat different from the position here, for there was no earlier expression of the principles to be applied from Zecevic by the learned Magistrate though the prosecutor had done so in a simplified and, regrettably, not entirely accurate form though the transcript may not be absolutely accurate.

116. The learned Magistrate here had, however, rejected the submission that it was necessary for the appellant to bite the wrist of the complainant in order to prevent the complainant punching her. His Honour expressly rejected that construction of events as "inconceivable".

117. Ordinarily, a failure to specify the correct test to be applied in relation to a principle, such as that relating to self-defence, would amount to inadequate reasons for decision and require the court to uphold the appeal and remit the proceedings back to the Magistrates Court.

118. It is desirable, however, to avoid this if it can properly be done without injustice. For example, where the outcome would inevitably be the same, it is not appropriate to remit a case for rehearing: R v Healey [2008] VSCA 132; (2008) 186 A Crim R 433 (at 442-4).

119. That is not the situation here, but the court should, nevertheless, take reasonable efforts, consistent with the interests of justice, not to remit cases for formal breaches of the obligations of judicial officers where the substance has not been breached. Thus, if the learned Magistrate has, in fact, applied the correct test and not misapplied or failed to apply it, then the failure to articulate it should not require a new trial with the attendance cost, stress to all involved and delay.

120. Here, it is clear that the learned Magistrate rejected the appellant's evidence about the punch she said was being delivered by the complainant. His Honour was clearly of the view that the punch could not have possibly been prevented by the appellant biting the complainant's wrist for the punch would have had to have connected with the appellant's face before she could physically have been in a position to bite the complainant's wrist. That seems to me to be an inevitable conclusion on the facts as given by all parties, even though there were differences between them.

121. For example, the complainant, the neighbour and the appellant's friend all stated that the appellant had fallen on top of the complainant. The complainant's daughter said that the appellant had fallen to the side but with her legs over the complainant. The appellant said that she had fallen beside the complainant. The complainant's daughter also said that the appellant's friend had said to the appellant "Get off [the complainant]," consistent with her looking at least as though she was on top of her.

122. While such inconsistencies are almost inevitable in circumstances such as this, it was not necessary for the learned Magistrate to resolve them all. The major issue was whether the action of the appellant in biting the wrist of the complainant could have been reasonably believed by the appellant to be necessary to defend herself from a punch. If there was no punch or if she had already avoided it, so that she was no longer in danger from it, then the occasion for self-defence had not been made out.

123. In this event, the question of self-defence does not arise because the appellant could not reasonably be of the belief that what she did was necessary to avoid the punch, if there was one, for she had already avoided it.

124. This is reinforced by the comment made by the appellant in her interview with police where she acknowledged that she, in biting the complainant's wrist, "didn't mean to go that far". She gave some insight into her thoughts by adding "I was really angry, and I just wanted to get her off me". In this, she is acknowledging that she did not need to do what she did for self-defence.

125. In these circumstances, the question of self-defence cannot reasonably have been raised on the evidence for the occasion for protection from injury had passed by the time that the assault by the appellant had occurred and the only reference to a need for self-defence was to protect herself from the punch itself.

126. It is, of course, true that there is a subjective element to be considered, but there must be some basis for the element; a mere reference is not sufficient: Douglas v The Queen [2005] NSWCCA 419 (at [100]). It has, as the court there noted, to be "raised in [a] meaningful way".

127. In my view, that has not been achieved in this case. Even taking the evidence of the appellant's friend at its highest, the issue of self-defence, as presented by the appellant, has not been raised in a way that is meaningful or was sustainable.

128. As a result, the appeal against conviction must be dismissed.

129. It was unclear whether the appeal against sentence was being pursued. I was left in doubt about that.

130. It does seem to me that, while the act of biting the wrist of the complainant was not trivial, the altercation was, if not caused, at least substantially exacerbated by the complainant. In those circumstances, it seems to me that a conviction may well be manifestly excessive. This was an altercation for which both parties bore some responsibility, but if the complainant had stayed in her home and not gone outside, for which there was no apparent need, the altercation would never have occurred. That, as well as her daughter coming on to the scene, were provocative acts which were unnecessary and undesirable and without which, the matter would probably had dissipated completely. Certainly the atmosphere of aggression would not have been present.

131. The imposition of a conviction is, of course, a penalty in itself: Henderson v McKenzie [2009] ACTSC 39 (at [49]). In the circumstances of this case, it may be that a non-conviction order was sufficient to mark the disapproval of the appellant's action to her behaviour, and in all the circumstances, no further penalty was required, though a Good Behaviour Order may have been appropriate.

132. I shall hear the parties as to whether the sentence should be upheld or set aside.

I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the appellant: Legal Aid ACT

Solicitor for the respondent: ACT Director of Public Prosecutions