"So I opened the door and I pushed him out of the door because he would not leave. He was getting very angry. [The baby] was very upset; it was really scaring her".

1. She said that "Kyra and Nic" were in her bedroom with the baby, who was crying, and she continued:

"...I got him out of the door, I kept asking him to leave still. He then grabbed me by the wrists on the porch. I had been on the phone to my mum for part of it, trying to get her to come home...He had thrown my phone on the lawn...He had my wrists, and he pushed me up against the corner between the wall and the door...

...so he had me by the wrists, both wrists, and he pushed me up against that corner, and he had his leg across my legs so I could not move. Kyra came rushing out; he was yelling in my face...".

1. The complainant said that Kyra "came rushing out trying to get him off me", by "trying to grab his arms and telling him to let go". Afterwards, the complainant said she had bruises for about a week and her right thigh was so sore that she could not sit down properly.
2. When she was cross-examined, the complainant denied having asked the applicant to "get his clothes and get out of the house". She also denied that he had collected bags of his belongings and started to leave. She agreed that she yelled at the applicant but said it was because he said he was going to "take the baby from her" and told her she was a "bad mother". It was put to her that she started to strike the applicant and she answered that she did not. She said that she was trying to push him out the door. The crux of the applicant's case was put to the complainant in this exchange:

"That was the case, wasn't it, he held your hand so you couldn't hit him?......No, he held my hands so that he could control me, like, that's just what he does.

But he was leaving and you were following him striking at him, that's why he stopped you?......He wasn't leaving. He was trying to take my child away from me when he has been abusive.

He was out the front door, wasn't he?......He was at that point, that's when I stopped pushing him and that's when he grabbed my wrists."

1. Later in her cross-examination she was asked whether she had followed the applicant to the front door to "further confront him, abuse him and hit out at him". She answered that "the reason I followed him was to make sure that he was leaving the house, and to lock the door behind him. I did not hit him at all. I had pushed him out of the door so that he would leave because he kept saying that he was not going to leave."
2. Nicolai Bakes gave evidence that, earlier, Mrs Walker had asked the applicant to leave the house because she needed the spare room for her step-daughter. The evidence did not establish whether Mr Bakes heard that request being made or precisely when it was made. However, in his presence, the complainant also asked the applicant to "pack his stuff and go" and "Bayli got a bit aggravated and...pretty much said he wasn't leaving without his daughter, and it all escalated from there". He said:

"Chelsey started pushing him out the door, he was pushing back, saying that he wasn't leaving without [the baby], and then Kyra showed up. She was also trying to get Bayli to leave just so that she could de-escalate, and when he continued to refuse to leave, I asked Kyra to go up to the bedroom to [the baby] because she was quite hysterical, walked out to the front door, and that's where Bayli had Chelsey up against the wall, both wrists."

"Chelsey was up against the wall, and Bayli had her both wrists pinned up against the wall, a knee across her legs so she couldn't move."

1. Mr Bakes later saw bruises on both the complainant's wrists and a couple of red marks on her thigh. The appearance of the bruises on her wrists was such that he suggested she go to the police to have them photographed.
2. When cross-examined, Mr Bakes maintained that he saw the complainant attempting to push the applicant out the front door and heard the applicant repeatedly saying, "I'm not leaving without [the baby]."
3. Kyra Randall-Sheals told the magistrate that she received a phone call from her brother asking if she could come and pick him up because "they had just kicked him out". She went to the house and "helped Bayli start grabbing some bags of his to put in the back of my car." She said that the applicant and the complainant were "yelling back and forth at each other" about bottles not being clean. Her brother made a comment about wanting to give his daughter a kiss, and "started to head outside". Then, she said, "Chelsey chased him down the hallway and out onto the front door step". After that, Ms Randall-Sheals said, she followed them out and "Bayli had hold of Chelsey's wrists." She accepted that her brother had hit the front door on the way out, and when asked, he left willingly, and that "It took a bit for him to go...". She described that her brother had his hands on the complainant's wrists, "restraining her" and as she stepped out towards him he said, "she hit me". Ms Randall-Shears pried her brother's arms away from the complainant by grabbing and pulling his thumb.
4. Cherie Walker also gave evidence. She was not present at the time of the alleged assault but arrived not long afterwards. That afternoon she had been visiting a friend when she started to receive text messages from her daughter that the applicant was "talking to her in an aggressive manner". She said that she sent a message to the applicant asking that he "needed to leave the house". Then her daughter phoned her and told her that the applicant was becoming more aggressive. She could hear "yelling and screaming" from both her daughter and the applicant and "bumps and bangs" in the background during the call. She heard Chelsey telling the applicant to "leave her alone". She and Andrew drove home. When she arrived the applicant was on the front lawn. She approached him and confronted him by asking "did you put your hands on my daughter" to which he responded that he "hadn't hit her." She then asked again if he had "laid hands on my daughter" and, when he said that he had, she pushed him. The applicant pushed her back whereupon she slapped his face before her friend Andrew, who had arrived with her, steered her away. The police were called. The complainant later told her that the applicant had "started verbally on her" and then, when she was trying to push him out the door, he "slammed her up against the brick wall" and gripped her arms. When cross-examined, Mrs Walker did not agree that the applicant told her that he had tried to prevent the complainant striking or hitting him.
5. During the police interview, the applicant told the police that he was "packing his stuff" and he and the complainant were "having a disagreement". He said she told him to "get my shit and go." He had a number of bags which he said he was taking to the car. He said that he accused her of "using" him and then "the whole scenario just escalated". The applicant told the interviewing officers that as he walked outside, she came "storming down the hallway" and started pushing him. He told her "enough's enough" and grabbed her. He was outside on the doorstep near the front door when the complainant was "basically trying to hit me and push me", so he "grabbed her wrists and I slightly just used my leg". He said that he "didn't kick her or nothing, I just pushed my body to say 'enough's enough' so I could get her away from me". She was "squirming and stuff really bad" but he was frustrated rather than angry. He grabbed her wrists because "she went to push me...hit me again and I grabbed her". He pushed his whole leg into her leg, so she "couldn't keep swinging and stuff". Later in the interview he said that he was "trying to restrain her" because "she was full on losing it at me...like she was out of control."
6. It is readily apparent from this evidence that, as earlier mentioned, it was not the applicant's case at trial that he had not applied force to the complainant, although he denied the allegation that he had kneed the complainant. He admitted grabbing her wrists and pinning her against the wall. The issue for the learned magistrate was whether she was satisfied beyond reasonable doubt that the force the applicant admitted applying was not justified by lawful self-defence.
7. On 4 June 2024 the magistrate found the charge proved and published written reasons. When handing down her decision the magistrate also made some oral remarks, I infer to attempt to ensure that the applicant immediately understood the basis of her decision without having to take it away and read it. There is no challenge to that process and it is not suggested that anything said by the learned magistrate conflicted with her written reasons. In the written reasons, the magistrate undertook a detailed review of the evidence of each of the witnesses. Her Honour noted the defence submission that the applicant was acting in self-defence because the complainant was chasing and hitting him. The applicant submitted to the magistrate that he was justified in applying force to the complainant because he was trying to prevent her from being aggressive and trying to protect himself.
8. The Police Offences Act, s 35(1), provides that "a person shall not unlawfully assault another person." "Assault" is defined in the Criminal Code, s 182, to the act of intentionally applying force to the person of another. The Code also provides, by s 46, that a person is justified in using, in the defence of himself, such force as, in the circumstances as he believes them to be, it is reasonable to use. The definitions in the Code and the principles to be applied apply equally to the summary offence of common assault: Police Offences Act, s 3(3), the Criminal Code Act 1924, s 4, and the Acts Interpretation Act 1931, s 36. Once the evidence raises the issue of self-defence, the prosecution bears the onus of proving beyond reasonable doubt that the acts in question were not done by way of lawful self-defence. A defendant is entitled to acquittal if the court is not satisfied beyond reasonable doubt that the defendant was not acting with justification under s 46: R v Walsh (1991) 60 A Crim R 419 and Crawford J (as he then was) in the Court of Criminal Appeal in Walsh v The Queen [1993] TASSC 91. The court must first ask whether an accused person genuinely believed that some force was necessary to defend him or herself in the circumstances that he or she believed them to be. That question is to be determined subjectively. If the court is satisfied beyond reasonable doubt that the defendant did not believe the circumstances required the use of force in defence of himself or herself, then the issue goes no further. If necessary, the court must then consider whether the force used was, in the circumstances as the defendant believed them to be reasonable to use: Hill v Richman That question is to be determined objectively. The prosecution must establish beyond reasonable doubt that a reasonable person would consider the amount of force used was unreasonable judged against the circumstances as the defendant believed them to be.
9. The basis of her Honour's conclusion that the force that the applicant admitted applying to the complainant, by holding her wrists and restraining her, was unlawful was stated in these terms:

"Defence counsel argued that Bayli was acting in self-defence. He did not strike Chelsey or hit out but was holding her. She was chasing Bayli and he was trying to prevent her from being aggressive. He was trying to protect himself.

However, it was not Bayli's house. He had been asked to leave and had no right to remain there. He was aware he had to leave and had made some effort to do so. I am satisfied he did resist leaving and it was lawful of Chelsey to try and push him out of the house. I accept that in the process of pushing she may have been hitting to get him out. However, he could have and should have taken the advice of his sister and walked away. He was not speaking calmly, acknowledged to police that emotions were heightened, and he was sounding aggravated. He acknowledged that he squeezed a bit too hard because he was told days later that she had a few marks 'and stuff'."

1. The learned magistrate made no express finding, either in that passage or elsewhere in her reasons, about whether the applicant believed that force was necessary to defend himself from the complainant or whether, having formed that belief, the amount of force he used was reasonable. Her Honour did state that the applicant could and should have walked away, which carries the implication that her Honour did not accept that the accused believed that force was necessary to defend himself. She also found that the applicant was in a heightened emotional state and that "he acknowledged that he squeezed a bit too hard because he was told days later that she had a few marks 'and stuff' (italics in original)". That comment suggests a finding that the amount of force applied was more than was reasonable.
2. It seems to me, however, that the true basis of her Honour's decision was her finding that the applicant applied force to the complainant when he knew he had been asked to leave the house and he had resisted the request to do so. Her Honour concluded that it was lawful for the complainant to use force to remove the applicant from the premises, and his use of force to resist or respond to his lawful removal was unlawful. That conclusion is the primary focus of the applicant's contentions in this motion.
3. One contention advanced by the applicant in his written submission was that the applicant was justified in using force to resist the complainant's attempts to remove him because he "had a right under the Residential Tenancy Act 1997 to remain." He contended that the complainant, "without authority, unilaterally terminated the tenancy agreement." It was not an argument advanced to the magistrate and, as the applicant's arguments were developed during the hearing of the motion, it was not a submission which was pressed. In any event, the contention must be rejected.
4. It can be stated with certainty that what the applicant's rights might have been under the Residential Tenancy Act was not a matter to which he applied his mind at the time of his confrontation with the complainant. It was not suggested to the magistrate that the applicant was party to a residential tenancy agreement. There was no evidence at all that the applicant was party to a residential tenancy agreement. The evidence was overwhelmingly to the contrary. The Residential Tenancy Act, s 10(1), provides that "a residential tenancy agreement exists where a right of occupancy of residential premises is granted by the owner of the premises to a person for value." Not only was there no evidence capable of establishing that the applicant had been granted a right to occupy Mrs Walker's home, but there was no evidence of a grant for value. He was not paying rent and there was no evidence of any other valuable consideration for a right to occupy. Even if, for example, there was evidence that he was contributing to household expenses by paying board, it is abundantly clear that the applicant's occupation of the home was not by right, but by permission or licence, which was terminable at any time and not subject to the Residential Tenancy Act.
5. The principal contention advanced by the applicant in his written submissions was that, on the evidence before the magistrate, it was not open to her Honour to find that the complainant was lawfully removing the applicant from the premises. It was submitted that the evidence established that the applicant was in the process of leaving the premises when she began to hit and strike him, not for his removal, but for some other reason.
6. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did: Phillips v Arnold [2009] TASSC 43 19 Tas R 21. The reviewing court is not entitled to "weigh the evidence and reach its own conclusions": Kent v Gunns Limited [2009] TASSC 30, 18 Tas R 454; Nilsson v McDonald [2009] TASSC 66, 19 Tas R 173. As a result, the applicant must demonstrate that no magistrate, acting reasonably, could have been satisfied of guilt beyond reasonable doubt: De La Motte v Chenery [2024] TASSC 53. When a case depends on the magistrate's assessment of the credibility of the witnesses, as this one did, the reviewing court must take into account the advantages enjoyed by the magistrate in seeing and hearing the witnesses as they gave evidence.
7. The critical passage in her Honour's reasons, although relatively brief, carried the following findings:
   • the applicant had been asked to leave;
   • he had no right to remain;
   • he knew he had to leave;
   • although he made some effort to do so he then resisted; and
   • it was lawful for the complainant to push him out of the house.
8. In my respectful view, there is no error of law or fact in any of her Honour's reasoning and conclusions and they were conclusions, on the evidence, she was entitled to reach. The difficulty for the applicant on this motion is that the factual scenario he advances in support of his contentions is contrary to those findings.
9. Earlier in her reasons her Honour found that the applicant "clearly knew he had to leave because he had phoned his sister, Kyra, and asked her to come and help him pick up his stuff 'because they had kicked him out'". There was ample evidence that, although the complainant walked to the front door after the applicant, it was only after she heard him strike either the door or the window, and had not left as she had asked. Both the complainant and Mr Bakes referred to the applicant's repeated refusals to leave. Her Honour also accepted Mr Bakes' evidence that the applicant was repeatedly saying that he was "not leaving without [the baby]". Although it is less clear from her reasons, the magistrate seemed also to accept the complainant's evidence that the complainant asked him to leave and "kept asking him to leave." In the account the applicant gave to the police, he admitted that the complainant told him to "get my shit and go." The magistrate found that the force which the complainant applied to the applicant included not only pushing, but she also may have been "hitting to get him out." There was no express finding that the magistrate was satisfied that the complainant had hit as well as pushed the applicant, but the necessary implication from her Honour's reasons is that the force the complainant applied to the applicant, whatever it was, was lawful.
10. In his written submissions, counsel for the respondent referred to the decision of Murrell CJ in Kerrison v Richards [2013] ACTSC 262. I do not find that case to be of any material assistance because the circumstances are different. The appellant, Mr Kerrison, was charged with assaulting his former partner and her mother, by pushing past them in the course of entering their home, in which he had formerly lived, to retrieve his dog. His defence to a charge of assault was that he had a right to enter the house to collect his dog. It was not a self-defence case, and did not address a situation in which force was applied by an accused person in response to force applied by a complainant.
11. However, in Viro v The Queen (1978) 141 CLR 88 and Zecevic v Director of Public Prosecutions [1987] HCA 26 162 CLR 645 the High Court considered the plea of self-defence in circumstances which, although not entirely analogous, provide strong guidance about the principles to be applied. In Viro, at 166-167, Gibbs J noted that "it is obvious enough that a person cannot rely upon the plea of self-defence unless the violence against which he sought to defend himself was unlawful." In that case, the question under consideration was whether a plea of self-defence may be available to a person who was the original aggressor in a violent attack but faced forceful resistance. The full passage from his Honour's reasons is as follows:

"In my opinion, in Australia the fact that the person raising self-defence was the aggressor is an important consideration of fact, but not a legal barrier to the success of the plea. The matter may be regarded in a similar light to a failure to retreat. It is obvious enough that a person cannot rely upon the plea of self-defence unless the violence against which he sought to defend himself was unlawful. If, therefore, one man makes a violent attack upon another with intent to rob him, and the man attacked defends himself, using no more force than is reasonably necessary, the original assailant cannot be said to be acting in self-defence in trying to overcome the other's resistance, since that resistance was lawful. However, if the original assailant has desisted from his attack, and his intended victim no longer needs to defend himself, and can not reasonably believe that he is still in danger, but nevertheless takes the offensive and out of anger or revenge himself becomes the attacker, the original assailant is not obliged to let himself be killed or injured without any attempt at resistance. Nevertheless, in such a case it is difficult to see how, as a matter of fact, the conduct of the aggressor, which commences as a criminal assault with an intent to commit a serious crime, can become transmuted in split seconds into lawful self-defence, unless the aggressor has clearly broken off his attack. In such circumstances the fact that he did not retreat when he had the opportunity to do so assumes a special significance."

1. Similarly, in Zecevic, Wilson, Dawson and Toohey JJ said at 663:

"There is, however, one situation which requires particular mention. It should, we think, be regarded as raising only evidentiary matters to be considered in arriving at an answer to the ultimate question, although in the code States it is treated as raising matters of law: see s 272 of the Criminal Code 1899 (Q); s. 249 of the Criminal Code 1913 (WA); s 47 of the Criminal Code 1924 (Tas). Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it."

1. Those passages establish that an original assailant cannot be said to be acting in self-defence in trying to overcome the other's resistance, since that resistance was lawful. The situation may alter if the original aggression has ceased, and the accused had sufficiently retreated so as to enable him or her to form a belief on reasonable grounds that force is necessary in self-defence.
2. In this case, the applicant's plea of self-defence could have succeeded if, for example, he had complied, or was complying, with the request that he leave the premises, but was nevertheless pushed and struck by the complainant for a purpose other than to achieve his removal. However, that scenario was contrary to the facts found by the magistrate. In my view the magistrate was completely justified in finding, as a matter of fact and law, that the complainant was acting lawfully when she tried to "push [the applicant] out of the house" even if she may "have been hitting him to get him out". The learned magistrate did not make any express findings about the nature and extent of the applicant's aggression prior to the application of the relevant force, beyond finding that his "emotions were heightened" and he was "sounding aggravated". Nevertheless, the complainant was a person in possession or control of her mother's house, and had her mother's express or implied authority. It was lawful for her to use such force as she believed, on reasonable grounds, to be necessary to remove the applicant from the house, if he wrongfully remained there or conducted himself in a disorderly manner: Criminal Code, s 41. The magistrate found that the applicant had no right to remain. There was ample evidence to justify that finding. The applicant's permission or licence to remain at the house had been revoked. The magistrate found that the applicant had been asked to leave. The evidence established beyond doubt, in the circumstances, that the complainant had her mother's authority to ask the applicant to leave, if that authority was required. In any event, there was undisputed evidence that her mother had, after receiving the phone call from her daughter, sent the applicant a text message asking him to leave the house. He admitted to his sister and to the police that he understood that he had been asked to leave. The applicant then resisted his removal. Again, there was ample evidence to justify that finding. Although he had begun to leave, the magistrate found that the applicant then refused to go and resisted the complainant's attempts to remove him. The magistrate found that he could have walked away but, rather than retreat when he had the opportunity to do so, he applied force to the complainant by grabbing her wrists and restraining her. His sister had to pull him away. All of those findings were ones which, as a reasonable person, the magistrate was entitled to make. It was open to the magistrate to conclude, and she made no error of law in concluding, that the applicant was not justified in using force, and could not be said to be acting in self-defence by applying force in response to the complainant's lawful attempts to remove him from the house.
3. None of the errors of fact or law contained in the grounds of the motion are made out. The motion is dismissed.