2. The orders made by the Magistrate are set aside and verdicts of not guilty are recorded on charges CC2015/1844 and CC2015/1845.

APPEAL AND NEW TRIAL - APPEAL - Criminal law - appeal against conviction - self-defence - escaping unlawful confinement - whether verdict unsafe and unsatisfactory - appeal allowed

Crimes Act 1900 (ACT), s 26

Australian Road Rules, r 272(a)

Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), r 6

Explanatory Memorandum, Criminal Code Bill 1994 (Cth) 32

Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353

Dal Cortivo v The Queen [2010] ACTCA 14; 204 A Crim R 55

Daly v Langlands [2014] ACTSC 209

Gibbs v Willis [2013] ACTSC 26

Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

O'Connell v McMennemin [2014] ACTSC 112

R v Keenan [2009] HCA 1; 236 CLR 397

R v Murphy (1985) 4 NSWLR 42

Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573

Zanker v Vartzokas (1988) 34 A Crim R 11

Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645

1. Adrian Rawsthorne has appealed against convictions recorded in the Magistrates Court on charges of common assault under s 26 of the Crimes Act 1900 (ACT) (the assault charge), and interfering with a driver's control of a vehicle under rule 272(a) of the Australian Road Rules (the driving charge).

2. The charges arise from an altercation between Mr Rawsthorne and a taxi driver, after Mr Rawsthorne and his girlfriend, Natalie Chynoweth, got into the taxi following a night of drinking in Canberra City.

3. Certain aspects of the narrative do not seem to be disputed.

(a) Mr Rawsthorne and Ms Chynoweth, who were both fairly intoxicated, got into a taxi driven by the complainant, Joe Gunaratnam, at the Bailey's Corner taxi rank in Civic. Mr Gunaratnam (whom I shall, with no disrespect intended, refer to as the taxi driver) asked for a pre-payment, for which the appellant offered a bank card. The taxi driver tried to process the payment, but payment was declined. Mr Rawsthorne then transferred money from another account to the bank card, but again payment was declined. The taxi driver retained Mr Rawsthorne's bank card.

(b) After Mr Rawsthorne and Ms Chynoweth got into the taxi, the taxi driver had started the meter, and by the time the payment was again declined, there was $8.40 on the meter. Mr Rawsthorne and Ms Chynoweth decided to get out of the taxi, but the taxi driver would not return Mr Rawsthorne's bank card, and Mr Rawsthorne would not get out of the taxi without his bank card.

(c) The complainant told Mr Rawsthorne and Ms Chynoweth that he was taking them to the police station, and began driving the taxi clockwise around London Circuit. Given the difficulty of making a U-turn on London Circuit, that was a reasonable way of proceeding to the police station, but it involved initial travel in a direction away from the police station.

(d) Mr Rawsthorne asked the taxi driver to stop the car, but he did not do so. As the taxi neared the intersection of London Circuit and Constitution Ave, the appellant first struck the complainant, and then pulled on the taxi's handbrake, bringing the taxi to a stop in the middle of the road. Mr Rawsthorne removed a phone (or possibly two) from the taxi driver's pocket. Shortly afterwards, the phone and the bank card were returned to their respective owners. The taxi driver called police.

(e) A police officer driving past observed the stationary taxi; the taxi driver flagged him down, and he stopped. He spoke briefly to the taxi driver, who was standing beside the taxi, and to Mr Rawsthorne who was standing nearby with Ms Chynoweth.

4. There was considerable divergence in the evidence about certain other aspects of the incident, such as:

(a) the location of the taxi at the time of the second attempted pre-payment (specifically, whether it was still at the taxi-rank or had travelled a short distance along London Circuit);

(b) the content of the specific interaction between Mr Rawsthorne and the taxi driver after the bank card payment had been declined for the second time; and

(c) whether the appellant punched the complainant with a closed fist, or pushed him with an open palm.

5. These kinds of uncertainties might seem to have been important, but in my view they have no direct significance in this case. Mr Rawsthorne conceded that he had struck the taxi driver, and had pulled on the handbrake, but said he had acted in self-defence. Self-defence was in fact the only issue before the Magistrate.

6. This meant that Mr Rawsthorne's perceptions of or about certain aspects of the incident were important. To the extent that Mr Rawsthorne's evidence was the only basis on which to make findings about those perceptions, his credibility was important, and her Honour's views about those disputed matters might, indirectly, have affected her conclusions about his credibility more generally. However, I am satisfied that none of the disputed matters had any direct relevance to whether Mr Rawsthorne had in fact acted in self-defence (at [136] - [143] above) and, as will emerge, that none of them raised issues about his credibility either (at [0] and [145] below).

7. The evidence led before the Magistrate in relation to the issues in dispute was as follows:

8. The taxi driver, Mr Gunaratnam, gave evidence that on the morning of the offence Mr Rawsthorne and Ms Chynoweth entered his taxi at the Bailey's Corner taxi rank, and that he immediately requested that they make a $25 pre-payment.

9. Mr Gunaratnam said that Mr Rawsthorne attempted to make the requested payment using his bank card, which declined. He said that he tried a further two times to process the payment, but that the transaction again declined on each attempt.

10. He said that after the card declined for a third time he asked Mr Rawsthorne and Ms Chynoweth to leave the taxi, but that Ms Chynoweth was upset, and that Mr Rawsthorne told him that he had to take the two of them home. Mr Gunaratnam said that Mr Rawsthorne then began to speak in a "rough and tough" manner, calling him a "black dog" and a "motherfucker" and asking him for cocaine.

11. Mr Gunaratnam said that throughout this interaction his car remained stationary outside Bailey's Arcade. He said that after Mr Rawsthorne's continued refusal to get out of the taxi he threatened to drive to the police station. Mr Gunaratnam later said that the main reason he took the appellant to the police station was that he (Mr Rawsthorne) had asked him for cocaine.

12. Mr Gunaratnam said that he then left the taxi rank and drove the car clockwise around London Circuit for 30 seconds to one minute, covering a distance of approximately 100 metres, before Mr Rawsthorne suddenly punched him to the left side of his face with a closed fist.

13. He said that Mr Rawsthorne then pulled the handbrake, causing the tyres to burn out and the car to stop suddenly. He said that Mr Rawsthorne asked for his bank card back, that he (Mr Gunaratnam) refused to return it, and that Mr Rawsthorne then suddenly snatched two phones from his pocket and said that he would only return them if the bank card was returned to him.

14. Mr Gunaratnam said that Mr Rawsthorne and Ms Chynoweth both appeared to be intoxicated, stating that he observed "fully the alcoholic smell" on Mr Rawsthorne and that Ms Chynoweth appeared "fully drunk and she sleep in the - she not wearing the seat belt and she sleep in the back seat".

15. In cross-examination Mr Gunaratnam denied that Mr Rawsthorne had told him he would transfer money to another account after his card had initially declined, or that Mr Rawsthorne was using his phone at the time of the interaction.

16. He also denied that he stopped the taxi between his departure from Bailey's Arcade and when Mr Rawsthorne pulled on the handbrake. He maintained this denial when defence counsel showed him time-stamped photographs from the taxi's on-board camera, which appeared to show that the taxi had braked a short time after leaving Bailey's Arcade, and that the taxi remained stationary for around four minutes thereafter (which I shall refer to as the missing four minutes). Mr Gunaratnam offered no explanation for this apparent break in the taxi's progress.

17. Mr Gunaratnam denied demanding that Mr Rawsthorne pay the $8 shown on the meter, or threatening to take Mr Rawsthorne to the police station due to his refusal to make that payment. However he said in cross examination that he had kept the bank card "because he not pay the money".

18. Mr Gunaratnam said that as he drove along London Circuit he was travelling at approximately 40km per hour. He conceded that at that time Mr Rawsthorne told him to "stop the car", but said that this request was made only once.

19. Senior Constable Wilson gave evidence that he drove past the stationary taxi at around 3.50 am on the morning of the offences, at which time he was flagged down by the complainant.

20. He said that he spoke to Mr Rawsthorne at the scene. He observed the smell of liquor on Mr Rawsthorne's breath and said that he had blood-shot eyes. He said he spoke to the appellant, describing his speech as "a bit slurred" but stating that he could still understand what he was saying.

21. Senior Constable Wilson said he had asked Mr Rawsthorne what happened, and that Mr Rawsthorne had told him that he had "punched the cab driver and pulled the handbrake on". Senior Constable Wilson said that he had recorded this conversation in his notebook a short time after it occurred.

22. Mr Rawsthorne gave evidence that on the night of the offences he had been out drinking with Ms Chynoweth. He conceded that he was intoxicated, but said that he "wasn't overly out of control or anything like that".

23. Mr Rawsthorne said that as soon as he and Ms Chynoweth got into the taxi, the taxi driver asked him for a payment of $25. He said that he told the taxi driver that he would need to transfer some money between accounts in order to make the payment, and that he then gave the taxi driver his card. He said the taxi driver then attempted to process the payment, but it declined as he had not yet transferred the money.

24. Mr Rawsthorne said that after his payment had declined he told the taxi driver that he still had to transfer money, and that he proceeded to use his phone to do so. He said that the taxi driver then moved the taxi forward, "just up the road, maybe like 20 or 50 metres or something like that" to allow other taxis to enter the rank. He said that the time-stamped photographs, which suggested that the taxi had stopped for approximately four minutes at a point along London Circuit, accorded with his memory of where the vehicle had stopped.

25. Mr Rawsthorne said that the taxi driver then made a further attempt to process the payment, but that it again declined. He stated that by this point he had transferred $30 to the account from which the payment was to be deducted.

26. Defence counsel tendered a document from the National Australia Bank showing a transfer of $30 between two of Mr Rawsthorne's accounts at 3.42 am on the day of the incident. Other photographs from the taxi's on-board camera showed that Mr Rawsthorne and Ms Chynoweth had entered the taxi at around 3.38 am and that the appellant struck the taxi driver before 3.50 am.

27. Mr Rawsthorne said that following this further unsuccessful attempt at payment he told the taxi driver that he and Ms Chynoweth would get out and "find a different way home", but that the taxi driver said "No, you can't leave until you pay $8.40" (this was the amount shown on the meter at the time). Mr Rawsthorne said that he had refused to pay this amount because the taxi hadn't driven them anywhere.

28. He said that the taxi driver then told him that if he didn't pay, the taxi driver would take him to the police station. Mr Rawsthorne said that he demanded that the taxi driver give his bank card back, but that the taxi driver refused. He said that the taxi driver then began driving.

29. Mr Rawsthorne said that at the time of the offence he had lived in Canberra for less than six months, and that he was not aware that London Circuit was "a loop". He said that it appeared to him that the taxi driver was heading in the opposite direction from the police station.

30. Mr Rawsthorne said that he told the taxi driver to "pull over ... heaps of times". He said that he felt "a bit scared" and "like I had no control of the situation, that maybe he had other intentions". He said that after the taxi driver refused his multiple requests to stop the taxi he "pushed [the taxi driver's] head", making contact with his left forehead.

31. Mr Rawsthorne said that the taxi driver still refused stop the taxi after being pushed in the head, and that he then pulled on the handbrake to stop the taxi.

32. Mr Rawsthorne denied asking the taxi driver for cocaine, or calling him a motherfucker or a black dog.

33. In cross-examination Mr Rawsthorne rated his intoxication on the morning of the offences as "maybe a six or a seven" out of 10, agreeing that he had consumed between 9 and 11 standard drinks in the preceding 7 hours. He said several times that he had a clear recollection of events on the night of the offences.

34. Mr Rawsthorne agreed that any concerns he had in relation to the situation he found himself in were escalated due to the knowledge that Ms Chynoweth was intoxicated and appeared to be unwell.

35. Mr Rawsthorne denied that the taxi driver told him and Ms Chynoweth to get out of the taxi. He said that he became scared at the point when the car began moving, and that he wasn't aware of whether the doors were locked.

36. Mr Rawsthorne described his striking of the taxi driver as a slap, although in cross-examination he characterised it variously as a slap, a hit or a shove. However, he firmly denied punching the taxi driver with a closed fist.

37. Mr Rawsthorne denied telling Constable Wilson that he punched the taxi driver in the face, stating that he had used the word "hit" rather than punch.

38. Natalie Chynoweth, Mr Rawsthorne's girlfriend, gave evidence substantially corroborative of his account. She estimated that in the hours leading up to the offences she had consumed 10 drinks, and rated her level of intoxication at the time of the offences as 7 out of 10.

39. She said that she got into the taxi through the rear passenger-side door and sat behind Mr Rawsthorne. She said that the taxi driver asked for a $25 pre-payment and that Mr Rawsthorne said that that would be fine and that he had to transfer money.

40. She said that after the initial attempt to process payment had been declined, the taxi driver drove the taxi along London Circuit and pulled up outside the Canberra Theatre. She said that the taxi driver again tried to process the payment but that it declined. She said she and Mr Rawsthorne then told the taxi driver they would get out and catch another taxi, but that he said "no, you owe me $8 because we've driven from here to here".

41. Ms Chynoweth said that she and Mr Rawsthorne refused to pay the $8 and that the taxi driver said he would take them to the police station. She said the taxi driver refused to give Mr Rawsthorne his bank card back.

42. She said that the taxi driver then began driving the taxi "further down the road", in a direction that she knew was "away from the police station", and said "I was crying at that stage and from my recollections I just kept saying 'I want to get out'". She said that there was lots of yelling at that point, but that she was not sure what was being said. She said the yelling was predominantly coming from the taxi driver.

43. Ms Chynoweth conceded that her memory of the morning in question had been affected by her level of intoxication at the time. She also accepted that she might have fallen asleep in the back of the taxi, and that she might not have heard everything said between Mr Rawsthorne and the taxi driver.

44. Ms Chynoweth denied hearing Mr Rawsthorne swear at the taxi driver or call him a black dog.

45. The notice of appeal specified the following grounds of appeal:

(a) her Honour erred in her application of the onus and burden of proof;

(b) her Honour erred in the application of the standard of proof;

(c) her Honour erred by failing properly to consider, or consider at all, Mr Rawsthorne's good character;

(d) her Honour erred by failing to properly apply the correct legal principles on self-defence and intoxication;

(e) her Honour erred in failing to consider whether the complainant had unlawfully confined Mr Rawsthorne and Natalie Chynoweth;

(f) her Honour erred in drawing inferences of fact she was not entitled to draw based on the evidence:

• (i) her Honour erred by placing too much weight on Mr Rawsthorne and Natalie Chynoweth being young and intoxicated persons;
• (ii) her Honour erred in drawing inferences of bad character in relation to Mr Rawsthorne being intoxicated in the past in the company of his character referees;
• (iii) her Honour erred in assessing Mr Rawsthorne's level of intoxication and ability of recall by finding Mr Rawsthorne would not have known what was happening on that day and would not have even realised that he was in Civic;
• (iv) her Honour erred in finding Mr Rawsthorne was not credible;
• (v) her Honour erred in placing weight on Natalie Chynoweth refusing to provide police a statement;
• (vi) her Honour erred in finding Natalie Chynoweth was asleep in the back of the taxi;
• (vii) her Honour erred in finding the complainant's evidence to be credible and reliable, notwithstanding the significant inconsistencies between the witness' evidence and objective evidence of the time-stamped in-car taxi footage and bank transfer receipt, his failure to give any sufficient explanation for the missing four minutes, his internal inconsistencies and performance as a witness generally;

(g) her Honour erred as a matter of law by excluding reasonable hypotheses consistent with innocence when, on the evidence, it was not open for her to do so; and

(h) her Honour erred in convicting Mr Rawsthorne on bases that were contrary to the evidence and were unsafe and unsatisfactory.

46. The appellant sought that the findings of guilt entered by the Magistrate be set aside and verdicts of not guilty be entered.

47. Several of these appeal grounds can be easily addressed.

48. Appeal grounds (a) and (b) suggest that her Honour erred in applying the onus, burden and standard of proof. Those grounds rely on her Honour's comments that:

The defendant would have me believe that he did all this in self-defence because somehow, because he was new to Canberra and didn't know where he was going in his intoxicated state, I'm sure he wouldn't have even realised that he was in civic. He would have me believe that all of this he did in self-defence because it was the only way.

(emphasis added)

49. Her Honour's comments were not well-chosen, and a listener hearing just the comments quoted at [48] above could certainly have wondered whether her Honour was taking a correct approach to the burden of proof in a criminal trial. However, given the Magistrate's long years of experience, and perhaps more importantly her immediately following comments, that "once the self-defence issue is raised the prosecution must prove beyond a reasonable doubt that the defendant was not acting in self-defence", I do not accept that her Honour had in fact mistaken the obligations on the parties to the effect that she believed it was up to the defendant to persuade her that he had acted in self-defence.

50. Accordingly, I reject appeal grounds (a) and (b).

Reasonable hypotheses consistent with innocence

51. Appeal ground (g), which complains about her Honour "excluding reasonable hypotheses consistent with innocence", raises an issue that might have been relevant if the case against Mr Rawsthorne was circumstantial, but that has no particular significance in a case of this kind. Mr Rawsthorne's involvement in the incident is not disputed, and the matters that remained to be resolved by the Magistrate were addressed in direct evidence before the court, not by circumstantial evidence from which inferences about those matters needed to be drawn (except to the extent that a fact-finder's decision about what to make of direct evidence of a person's belief given by that person might depend on inferences, about the credibility of that evidence, drawn from other evidence). See Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, and R v Keenan [2009] HCA 1; 236 CLR 397, in which Kiefel J said at [126]:

The direction, that a jury can only find, by inference, an element of the offence charged if there is no other inference favourable to the accused reasonably open on the facts, may be called for when the prosecution relies upon circumstantial evidence. But it is no more than the amplification of the rule that the prosecution must prove its case beyond reasonable doubt.

52. Appeal ground (c) complains about her Honour's approach to Mr Rawsthorne's "good character", which is said to have been demonstrated by his lack of a criminal history and the character references from two friends which were provided to the court. Appeal ground (f)(ii) raises a similar complaint.

53. Ms Chynoweth provided some brief character evidence in response to the allegation that Mr Rawsthorne had called the taxi driver a "black dog" and a "motherfucker", summarised by her Honour as that Ms Chynoweth didn't think "that he would use these sorts of words because he is not a racist and he doesn't use that sort of language".

54. Two written character references were tendered in the trial, and read by her Honour immediately after they were tendered.

55. The written references were provided by Mr Rawsthorne's cousin, with whom he lived for a time after moving to Canberra, and from a more senior employee at the roof repair company where Mr Rawsthorne worked. Mr Rawsthorne's cousin described him as "a kind and well-meaning person" who is helpful to his family, easy-going and not easily upset. His work colleague described Mr Rawsthorne as "the best apprentice we have had for many years", a person who is smart, thinks carefully and is "great with customers".

56. Each reference described socialising with Mr Rawsthorne, and the writer's observations of him when intoxicated. His cousin said that "when [Mr Rawsthorne] is drinking he is a funny guy ... Even more easy-going", and went on:

I have never seen Adrian as an angry drunk. He is usually the cool head in a situation. He has even calmed down some other arguments getting out of control between friends and strangers. I have never seen him aggressive, violent or himself getting into arguments when drinking.

57. Mr Rawsthorne's colleague also described socialising with Mr Rawsthorne, including on fishing trips, saying he had seen Mr Rawsthorne intoxicated "around 10 times". He said:

He is never aggressive or violent when drunk.

I have seen him from anywhere between a little tipsy and very drunk in the early hours of the morning. When he is drunk he is always in a good mood and pretty happy. I have never seen him be aggressive, start a fight or get into any "push and shove". I also haven't heard from anyone else of him being aggressive when drunk.

58. In a criminal trial, evidence of a defendant's good character may be used by the fact-finder in two different ways:

(a) as a factor affecting the likelihood of the defendant having committed the offence with which he is charged (Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353 at 359); and

(b) in assessing the credibility of any evidence given by the defendant (R v Murphy (1985) 4 NSWLR 42 at 54)

59. The propositions set out at [58] above are fairly straightforward, and not ones that a magistrate would usually feel the need to remind herself about explicitly. Before me, counsel for Mr Rawsthorne conceded that courts generally retain a discretion as to whether evidence of good character should be referred to in reasons for a decision.

60. However counsel submitted, and I agree, that where evidence of good character has been given, and the defendant is to be found guilty despite the good character evidence, it would generally be appropriate for the good character evidence to be mentioned, however briefly, in order to dispel any concern that the evidence had been overlooked.

61. However, despite having read the two written references when they were tendered, her Honour did not refer to the character evidence at all when giving her reasons for finding Mr Rawsthorne guilty of the two offences.

62. Only after she had indicated her findings, and turned to sentencing (in which character evidence is also specifically relevant), did her Honour mention the written references, saying "I just want to have another look at those references", and commenting on them in a way that suggested that they had, if anything, made things worse for Mr Rawsthorne.

63. The references were obviously focused on Mr Rawsthorne's behaviour when intoxicated, no doubt with a view to meeting the suggestion that Mr Rawsthorne had been violent and aggressive because he was intoxicated, and supporting a submission that his behaviour on the occasion giving rise to the charges had resulted not from his intoxication but from other concerns.

64. Unfortunately, the wording of the references, especially his cousin's statement that he had "never seen Adrian as an angry drunk" was misconstrued by her Honour. She read the cousin's reference as implying that he thought of Mr Rawsthorne as "a drunk" (albeit not an angry one), saying:

they're both giving references, character references about a man who they describe as being a drunk. The young man being described as a drunk. And that's very sad. It's very sad to see and to hear about young people being described as drunks.

65. Her Honour went on to propose attaching to a good behaviour order a supervision condition requiring Mr Rawsthorne to accept some drug and alcohol counselling. When this was queried by defence counsel, her Honour insisted that "his friends think of him as a drunk".

66. Defence counsel sought to correct this misinterpretation, saying that the references did not classify Mr Rawsthorne as a drunk but reported that "when he is intoxicated or drunk he is not aggressive".

67. As noted, the references were tendered during the trial and read by her Honour at the time. Although she made no comment about them in the reasons for her verdicts, I accept the proposition that her subsequent comments about those references, made in the course of the immediately-following sentence hearing, can be assumed to have reflected the approach she took to those references in the course of determining the charges.

68. In short, her Honour had clearly misinterpreted a significant part of the character evidence before her in the trial, and in giving reasons for her verdicts said nothing to dispel the justified suspicion that the misinterpretation had fed into her verdicts in a way that was erroneous.

69. This conclusion of itself would not necessarily provide a basis for overturning her Honour's verdicts, but it may be relevant in consideration of other appeal grounds.

70. The real complaints in this case are set out in appeal grounds (d), (e) and (f), and the impact of the errors mentioned in those grounds is set out in appeal ground (h). Despite its inelegant drafting, I read that last appeal ground as asserting that the Magistrate's erroneous approach to both the relevant law (as identified in appeal ground (d)) and the evidence (as identified in appeal grounds (e) and (f)) rendered her verdicts unsafe and unsatisfactory, and that they should accordingly be set aside and replaced with verdicts of not guilty.

71. It is accordingly necessary to consider both the law relating to self-defence, and the relevant evidence, in more detail.

72. The legal principles against which I propose to test her Honour's approach seem to be agreed by the parties, and can be summarised as follows (they will be considered in more detail as necessary):

(a) that an alleged unlawful confinement is relevant in a claim of self-defence;

(b) that the relevant test for the applicability of self-defence:

• (i) for the assault charge - is as set out in Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645 (Zecevic); and
• (ii) for the driving charge - is set out in s 42 of the Criminal Code 2002 (ACT);

(c) that the principles relating to the significance of intoxication in the context of self-defence that are set out in s 33 of the Criminal Code apply in relation to any defence that is available to the assault charge or to the driving charge.

73. I note at this point that the law relating to self-defence is dealt with in the Criminal Code for certain offences (including the driving offence) and largely under the common law for some other offences, including assault.

74. Appeal ground (e) complains that her Honour failed to consider whether Mr Rawsthorne and Ms Chynoweth had been unlawfully confined by the taxi driver.

75. This ground raises several issues, specifically:

(a) whether responding to an unlawful confinement justifies acting in self-defence; and

(b) if so, whether the test of a relevant unlawful confinement is an objective or subjective test (in this case, would it have been sufficient for the prosecution to establish that there was no unlawful confinement, or would the prosecution have needed to negate an honest belief in an unlawful confinement).

Is unlawful confinement a ground for acting in self-defence?

76. Avoiding or escaping from unlawful imprisonment (alternatively described as unlawful confinement) is specified in s 42 of the Criminal Code (set out at [86] below) as a basis for acting in self-defence (s 42(2)(a)(ii)). The common law position is not so clear; the Explanatory Memorandum for the Commonwealth Criminal Code Bill 1994, referring to the provision that is the source for s 42 of the ACT Criminal Code, said:

The extension of the right to use force to situations where the purpose is to terminate the unlawful imprisonment of the accused or another is rarely invoked at common law and consequently the law is in an unsatisfactory state. The leading case Rowe v Hawkins [1858] EngR 146; (1858) 1 F&F 91, 175 ER 640 is draconian.

Proposed subsection 10,4(2) extends the current provisions in the Griffith Codes, although it may be argued that subsection 31(3) of the WA Code may be broad enough to cover the situation if the expression "unlawful violence" is wide enough to encompass the concept of unlawful imprisonment.

77. Counsel for Mr Rawsthorne referred to Zanker v Vartzokas (1988) 34 A Crim R 11), in which it was held that a woman being kept against her will in a moving vehicle, and threatened with physical assault when the vehicle reached its destination:

(a) because she was effectively "imprisoned", faced [a realistic threat of imminent violence which amounted to an assault]; and

(b) was subject to "total restraint" because there was no reasonable means of escape (getting out of a van travelling at high speed - 60 kph - was not a reasonable means of escape).

78. The relevance of this case is not straightforward. The conclusion in the case was that the threat of physical assault that was constituted in that case by a form of confinement was enough to constitute an assault. It is not the same as a conclusion that a confinement as such, or even an unlawful confinement, may permit a finding that action taken to address or escape the confinement was taken in self-defence, although it may provide a starting point for such a reasoning process.

79. The issue was not taken further by either counsel. Counsel for Mr Rawsthorne clearly assumed that even in relation to the assault charge against his client, which is not subject to s 42 of the Criminal Code, action taken in response to an unlawful confinement could be found to have been taken in self-defence; counsel for the respondent challenged whether, on the evidence, there had been an unlawful confinement, but did not seek to confine this appeal ground on the basis that, even if an unlawful confinement could be found, that would have left the possibility of action in self-defence open only in relation to the driving charge.

80. Having regard to s 42 of the Criminal Code, and in the absence of any conflicting authority or any relevant challenge from the respondent, I am satisfied that unlawful confinement may be a relevant factor in a prosecution in which self-defence is raised, even if s 42 of the Criminal Code is not applicable in the prosecution. That is, in such a prosecution, evidence of a confinement of the defendant or another person maybe enough to satisfy the evidential burden on the defendant to raise the possibility that an action taken for the purpose of ending that confinement was taken in self-defence, leaving the prosecutor needing to establish beyond reasonable doubt that the defendant's action was not taken in self-defence.

Is unlawful confinement an objective or subjective question?

81. The next question raised is whether, where unlawful confinement is in issue, it needs to be established objectively (as implied by the appeal ground), or established only as part of the defendant's honest belief. In the absence of submissions from the parties on this question, but noting the terms of s 42 of the Criminal Code, I consider that, where unlawful confinement has been raised, the issue is whether the defendant's honest belief in the necessity of acting in self-defence could be based on an honest belief, or perhaps a perception, that the relevant circumstances involved an unlawful confinement, rather than requiring an accurate assessment (whether by the defendant or by the fact-finder) of the objective existence of an unlawful confinement.

82. If my conclusion is correct, then the objective question whether Mr Rawsthorne and Ms Chynoweth had been unlawfully confined by the taxi driver was irrelevant to her Honour's consideration (although her Honour would have been in error if she had concluded that unlawful confinement as such was entirely irrelevant to the availability of self-defence).

83. This appeal ground accordingly fails, although the question of unlawful confinement is relevant to the consideration of her Honour's approach (to both the law and the evidence) that is required to deal with the remaining appeal grounds.

84. In relation to the assault charge, the parties referred me to Daly v Langlands [2014] ACTSC 209, in which I set out a formulation of the relevant legal test as follows:

23. The parties agreed that the test for self-defence in a case of this kind is as set out in Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645 (Zecevic) at 661 (Wilson, Dawson and Toohey JJ) as follows:

The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.

24. This test can be broken down into two questions arising from this test:

(a) whether the defendant had an honest belief that it was necessary in self-defence to do what he did; and

(b) whether in all the circumstances there were reasonable grounds for the defendant's belief that it was necessary in self-defence to do what he did.

85. Section 42 of the Criminal Code applies to the driving offence, which arises under r 272 of the Australian Road Rules. Those rules are incorporated into ACT law through r 6 of the Road Transport (Safety and Traffic Management) Regulation 2000 (ACT) (the Road Safety Regulation), which provides that those rules are to be read as if they formed part of that regulation. Reg 4A of the Road Safety Regulation provides that Ch 2 of the Criminal Code (which includes s 42) applies to offences against the Road Safety Regulation, including offences in contravention of the Australian Road Rules.

86. Section 42 is as follows:

(1) A person is not criminally responsible for an offence if the person carries out the conduct required for the offence in self-defence.

(2) A person carries out conduct in self-defence only if -

(i) to defend himself or herself or someone else; or

(ii) to prevent or end the unlawful imprisonment of himself or herself or someone else; or

(iii) to protect property from unlawful appropriation, destruction, damage or interference; or

(iv) to prevent criminal trespass to land or premises; or

(v) to remove from land or premises a person committing criminal trespass; and

(b) the conduct is a reasonable response in the circumstances as the person perceives them.

(3) However, the person does not carry out conduct in self-defence if -

(a) the person uses force that involves the intentional infliction of death or serious harm -

(i) to protect property; or

(ii) to prevent criminal trespass; or

(iii) to remove a person committing criminal trespass; or

(b) the person is responding to lawful conduct that the person knows is lawful.

(4) Conduct is not lawful for subsection (3) (b) only because the person carrying it out is not criminally responsible for it.

87. For present purposes, the basic issues in considering whether Mr Rawsthorne acted in self-defence are whether:

(a) he believed his conduct was necessary to defend himself or his girlfriend, or to prevent or end the unlawful imprisonment or confinement of himself or his girlfriend; and

(b) that conduct was a reasonable response in the circumstances as Mr Rawsthorne perceived them.

88. A defendant acts in self-defence if both conditions are satisfied, and the prosecution can therefore exclude self-defence by establishing beyond reasonable doubt that at least one of those conditions was not satisfied.

89. Finally, in considering self-defence in this case, the significance of Mr Rawsthorne's intoxication must be determined. This is by no means simple.

90. Section 33 of the Criminal Code is as follows:

(1) If any part of a defence is based on actual knowledge or belief, evidence of intoxication may be considered in deciding whether the knowledge or belief exists.

(a) each physical element of an offence has a fault element of basic intent; and

(b) any part of a defence is based on actual knowledge or belief;

evidence of self-induced intoxication cannot be considered in deciding whether the knowledge or belief exists.

(3) If any part of a defence is based on reasonable belief, in deciding whether the reasonable belief exists, regard must be had to the standard of a reasonable person who is not intoxicated.

(4) If a person's intoxication is not self-induced, in deciding whether any part of a defence based on reasonable belief exists, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned.

91. Whether self-defence is a "defence" to the assault charge for the purposes of s 33 of the Criminal Code is not a simple question, given that self-defence, to the extent it is a matter for the prosecution to address, is not a "defence" properly so called; however, consideration of the Criminal Code, and of the Explanatory Memorandum for the Bill that became the _Criminal Code Act 1995 (Cth) (_which is the source of the ACT Criminal Code), suggests that s 33 is intended to apply wherever self-defence is relevant, as was assumed in Dal Cortivo v The Queen [2010] ACTCA 14; 204 A Crim R 55 (Dal Cortivo) and accepted by Refshauge J in Gibbs v Willis [2013] ACTSC 26 (Gibbs).

92. The operation of s 33 in relation to common law self-defence can be extracted (with some difficulty) from the comments of the Court of Appeal in Dal Cortivo; the approach so extracted appears to be equivalent to the explicit explanation given in s 42 of the Criminal Code.

93. In Gibbs, Refshauge J considered this issue at some length (at [160] - [165]). His Honour went through the following process:

(a) (at [162]) he mused that it seemed that "for those offences to which s 42 of the Criminal Code applies, [self-defence] is now to be considered a defence";

(b) (at [163]) he noted that "the real issue may simply be the question of which party bears the onus of proof and what onus that is";

(c) (at [64]) his Honour referred to Dal Cortivo, in which the Court of Appeal said:

42. ... The fact of intoxication cannot be ignored in determining whether, as a matter of fact, the knowledge or belief existed. Whether it is a reasonable belief may, of course, be adjudged according to the standard of a person not intoxicated.

43. ...

44. In the present case, it was, in our view, necessary to consider the role of "belief" in assessing the existence of reasonable grounds. Whether there are reasonable grounds for a relevant belief is an objective test but how the accused actually perceived those grounds is a question of fact.

45. In the present case, it seems to us to have been misleading to ask whether by the standards of a sober person there were reasonable grounds for the appellant to consider that it was necessary for him to act in self-defence. Rather, the jury should have been directed that unless they were to reject the evidence both of the complainant and the appellant as to what the complainant said, they could not be satisfied that there were no reasonable grounds for a belief that the appellant needed to act as he did in self-defence.

(d) (at [165]) his Honour summarised his interpretation of the Court of Appeal's conclusions as follows:

165. Thus, in order to discharge its onus of proof, the prosecution must show, not only that Mr Gibbs did not actually believe that it was necessary to do what he did to protect Mr Bass, but that there were no reasonable grounds for the belief of Mr Gibbs to do what he did. That is to say, the prosecution had to prove beyond reasonable doubt that there were no such grounds and, in deciding whether the prosecution has discharged that onus, the court is required not to ask whether a reasonable sober person would have thought that there were reasonable grounds for that belief, but whether it was reasonably possible that there were grounds for such a belief. This is the objective part of the test, not dependent on the sobriety or otherwise of the accused or defendant.

94. I have some difficulties with his Honour's summary of the Court of Appeal's comments (as well as with the Court of Appeal's comments themselves).

95. First, his Honour seeks to distinguish between:

(a) whether a reasonable sober person would have thought that there were reasonable grounds for the relevant belief; and

(b) whether it was reasonably possible that there were grounds for such a belief.

96. However, the two formulations do not seem to address the same issue. The question set out at [95(a)] above is a version of the second limb of the Zecevic test, expanded to take account of the supposedly objective nature of the test in relation to an intoxicated defendant. Paragraph [95(b)] describes the nature of the "evidential burden" placed on the defendant to raise self-defence: that evidential burden is defined in s 58(7) of the Criminal Code as follows:

evidential burden, in relation to a matter, means the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

97. That is, in relation to the second limb of the test, the evidence to be presented or pointed to by the defendant must raise the reasonable possibility that the second limb is satisfied (ie, that there were reasonable grounds for his belief in the necessity of acting in self-defence). The burden on the defendant in relation to the second limb of the Zecevic test for self-defence is to present or point to evidence "that suggests a reasonable possibility" that there were "reasonable grounds for a belief" that the accused needed to act as he did in self-defence. The requirement of reasonableness in relation to discharging the evidential burden has nothing to do with the requirement of reasonableness for the accused's grounds for believing he needed to act as he did in self-defence. The accused will satisfy the evidential burden if he presents or points to evidence suggesting a reasonable possibility that there were reasonable grounds for his belief.

98. I note also that it is not correct that the prosecution must exclude both limbs of the self-defence test in order to discharge its onus of proof, because the availability of self-defence depends on both limbs being satisfied; that is, if the prosecution can establish that there was no relevant belief, that will exclude self-defence as an issue, and if a relevant belief cannot be disproved, the prosecution can still exclude self-defence by establishing that there were no reasonable grounds for such a belief.

99. Given these difficulties, I have considered the Court of Appeal's comments further, and have concluded that the Court was suggesting an approach to intoxication under s 33 that is slightly different from the approach described by Refshauge J. My interpretation of what the Court of Appeal meant is:

(a) that intoxication must be taken into account in determining whether the accused had an honest belief that it was necessary to act as he did in self-defence (Court of Appeal at [42], relying on the Criminal Code at s 33(1));

(b) that whether there were reasonable grounds for the accused's belief is determined by reference to the circumstances as perceived by the accused in his intoxicated state (Court of Appeal at [44]); but

(c) that whether those circumstances as perceived by the intoxicated accused provided reasonable grounds for the relevant belief is an objective question which must be determined objectively (presumably by the fact-finder), and having no regard to the accused's intoxication.

100. That last proposition is not immediately obvious from the Court of Appeal at [45], but seems to emerge from the fact that the last sentence of the extract from [45] had, in the circumstances of that particular case, the following effect:

Rather, the jury should have been directed that [if they accepted the evidence that the complainant had made a comment that could have been interpreted by an intoxicated person as a threat of violence], they could not be satisfied that [in those circumstances as perceived by the intoxicated appellant,] there were no [objectively] reasonable grounds for [the appellant's belief that he needed to act as he did in self-defence].

101. That is, the Court of Appeal seems to have implied that, in the particular case, the intoxicated accused's perception of a threat of violence (even if that perception was wholly or partly a product of the intoxication) could, and did in that case, provide an objectively reasonable ground for his belief that he needed to act as he did in self-defence.

102. This approach is close to the words of s 42, which expands on the second limb of the self-defence test as formulated in Zecevic by making it explicit that the reasonableness of the accused's response is determined by reference to the accused's perception of the circumstances in which self-defence is said to have been raised. Section 42 thus identifies the relevance of intoxication to the second (objective) limb of the self-defence test.

103. Accordingly, I agree with the view of the parties that effectively the same tests for self-defence may be applied in determining each charge.

104. From the discussion above can be extracted the following expression of the task facing the prosecution in seeking to establish that an intoxicated defendant is criminally liable for an offence, in the context of a claim of self-defence as to which the defendant has discharged the evidential burden: the prosecution must show beyond reasonable doubt either:

(a) that the defendant, in his or her intoxicated state, did not have an honest belief that it was necessary in self-defence to do what he or she did; or

(b) that even if the defendant did have such a belief, there were, even in the circumstances as he or she perceived them in that intoxicated state, no reasonable grounds for that belief.

105. This is not a simple test, and it is a test that in most cases, including this one, requires a careful analysis of the evidence that is accepted by the court.

106. In the Magistrates Court, there was some discussion in the course of submissions by the parties about the principles relating to self-defence. Both counsel mentioned the issue of intoxication, but not to any particularly useful effect.

107. Defence counsel began by challenging the taxi driver's credibility, but then, after noting that Mr Rawsthorne did not bear any onus of proof, summarised the facts as he said they should be found:

[The defendant], relatively new to the area, not aware that that was an alternative route to the police station, aware that his repeated requests to leave the taxi had been refused and aware that despite his repeated demands to stop the taxi the driver was now driving and accelerating a direction that was away from the police station. In that context, when he has a distressed girlfriend in the back, ... faced with a taxi driver who was argumentative, who demanded payment for $8, who was driving away from the police station and in a situation where his girl was becoming distressed, and he himself gives evidence that he was concerned about what was happening. Despite his request to stop nothing happens. He forcefully pushes him to the face in order to get this man to stop. He doesn't. He then pulls up the handbrake and that stops the vehicle.

108. Counsel then submitted that the taxi driver had been acting unlawfully in deciding to keep Mr Rawsthorne and Ms Chynoweth in the car and go to the police station, and that Mr Rawsthorne's response was a reasonable one. He went on:

the issue about intoxication applies to the two elements of self-defence. The prosecution can either negate [sic] that there was no reasonable basis for the belief, or that the defendant did not have that belief, that he had to do what he did in self-defence.

109. Counsel appears to have confused himself in dealing with the double negatives; the matters he referred to were what the prosecution needed to prove rather than to negate. However I do not consider that her Honour was confused or misled by counsel's comments.

110. Counsel then submitted that in considering these issues, her Honour would have no reason to reject the evidence of Mr Rawsthorne or Ms Chynoweth, and that "the prosecution cannot negate that he held that belief". He then quoted the comments of Refshauge J in Gibbs at [165], being:

the court is required not to ask whether a reasonable sober person would have thought that there were reasonable grounds for that belief, but whether it was reasonably possible that there were grounds for such a belief. This is the objective part of the test, not dependent on the sobriety or otherwise of the accused.

111. The prosecutor also said little about intoxication (although she was later driven to interject while her Honour was delivering her reasons: at [122] below):

for your Honour to first accept self-defence arising and then for the Crown to negate that, I agree with my friend's two-part test. What I understand is the R v Zecevic, two-part test, objective and objective [sic], but the objective test is in the intoxicated person's shoes, although it does not need to be one that is far-fetched and fanciful. It still has to be subscribed to that objective test in the defendant's shoes, if your Honour accepts that he was a six to seven out of 10 intoxication, as I put to him.

112. As to the facts, the prosecutor made the following submissions:

if your Honour accepts that self-defence has been raised on the balance of probabilities by my friend and that the prosecution is to negate it, your Honour, the Crown does that on the complainant's evidence in the way that has already been submitted by the Crown in that if you accept that he asked him to get out of his car and he didn't, and after those requests were refused by the defendant, and the defendant acted in the way that the victim said he did, then it was appropriate for him to drive into the police station, if your Honour accepts that that's where he the taxi driver was taking them and not to some unknown location, then that certainly would be negated on that evidence alone, your Honour, in that he had many other options available to him at that time and if he had only waited a few more seconds, they would have been at the police station. They weren't that far, your Honour, as your Honour can see from where the car pulled up with the handbrake.

113. The Magistrate's comments about the principles she applied were scant and also internally inconsistent, and there was, it must be said, almost no attempt in her reasons to relate the principles to the evidence.

114. Having summarised the evidence, her Honour said:

The defendant would have me believe that he did all this in self-defence because somehow, because he was new to Canberra and didn't know where he was going in his intoxicated state, I'm sure he wouldn't have even realised that he was in Civic. He would have me believe that all of this he did in self-defence because it was the only way. He said he was scared once the taxi driver took off, after telling him that, "I'm taking you to the police station because you won't pay me and you won't get out of my car," more importantly, "you won't get out of my car," the defendant says that he was scared and that was his only alternative.

So once the self-defence issue is raised the prosecution must prove beyond a reasonable doubt that the defendant was not acting in self-defence. As Ms Clarke said, the case is Zecevic and the test is this: did the defendant believe on reasonable grounds that it was in self-defence necessary to do what he did; and were there reasonable grounds for that belief. So in other words, the defendant's resort to force and the amount of force must be subjectively and objectively reasonable.

The defendant must believe that the resort to force is necessary and it must be necessary in fact. It follows that if the prosecution disproves either contention beyond reasonable doubt the defence fails. I find that the prosecution has disproved both contentions beyond a reasonable doubt and the defence fails. If this man had been sober none of this would have happened. No reasonable person would think that the taxi driver saying, "I'm taking you to the police station because you won't get out of my car - - -"

MS CLARKE: Your Honour, can I just say on the transcript that the submissions were that in the mind of an intoxicated person - - -

HER HONOUR: A drunken person, an intoxicated person.

MS CLARKE: Yes. That objectively is correct and I agree with my friend with Refshauge J and taking what is a Zecevic case in any event. That if your Honour has found that in issues which your Honour accepts were a seven out of 10 intoxication, if your Honour accepts that, that it's in that frame of mind, that it was not objectively reasonable.

HER HONOUR: Yes, and that's the test that I accept. What you did was not lawful. You had no right to punch this man and you have no right to stop his car in the middle of the trip. I am satisfied beyond a reasonable doubt [...] that the offences are made out, and I find both of them proved.

(emphasis added)

115. In this exposition of the relevant law, her Honour first articulated the two tests as follows:

did the defendant believe on reasonable grounds that it was in self-defence necessary to do what he did; and were there reasonable grounds for that belief.

116. Her Honour's formulation did not exactly reflect the High Court's approach, in that she provided what appear to be two limbs of the relevant test, whereas the first limb in fact sets out in full the High Court's summary of the whole test, and the second limb is the second limb of the High Court's test. That is, the requirement of reasonable grounds for a belief is the second limb of the test; the first limb of the test is whether the belief was in fact held.

So in other words, the defendant's resort to force and the amount of force must be subjectively and objectively reasonable.

118. This formulation was said to be wrong by Refshauge J in Gibbs at [113] and [155]. In that case, his Honour explained that the amount of force used by an accused must have been proportionate, and that is an issue which raises a question of reasonableness. However, there is no reasonableness test for the conduct of the accused; what needs to be reasonable are the grounds for the accused's belief that it was necessary in self-defence to act as he did.

119. The Magistrate then re-stated the test again, as follows:

The defendant must believe that the resort to force is necessary and it must be necessary in fact. It follows that if the prosecution disproves either contention beyond reasonable doubt the defence fails.

120. This time, her Honour correctly separated the defendant's holding of a belief from the objective test of the reasonableness of that belief. However, the requirement of reasonable grounds for believing that the use of force was necessary (as, in effect, required by the High Court in Zecevic) is not the same as a requirement that the use of force was in fact necessary, as her Honour described it.

121. Although, as an experienced Magistrate, her Honour probably did have the proper test for the availability of self-defence in her mind, she did not explain her approach in a way that would have inspired confidence in the parties (or at least their legal representatives).

122. Her Honour's reference to intoxication in her reasons was brief:

I find that the prosecution has disproved both contentions beyond a reasonable doubt and the defence fails. If this man had been sober none of this would have happened. No reasonable person would think that the taxi driver saying, "I'm taking you to the police station because you won't get out of my car - - -"

MS CLARKE: Your Honour, can I just say on the transcript that the submissions were that in the mind of an intoxicated person - - -

HER HONOUR: A drunken person, an intoxicated person.

MS CLARKE: Yes. That objectively is correct and I agree with my friend with Refshauge J and taking what is a Zecevic case in any event. That if your Honour has found that in issues which your Honour accepts were a seven out of 10 intoxication, if your Honour accepts that, that it's in that frame of mind, that it was not objectively reasonable.

HER HONOUR: Yes and that's the test that I accept.

123. The prosecutor's submissions as repeated to the Magistrate during her reasons and quoted above were not particularly helpful, but I recognise that she was struggling to steer the Magistrate back to the correct position while her Honour was in full flight expressing the view that "if this man had been sober none of this would have happened" (which is clearly not the applicable test). Her Honour's comment appeared to be a rejection of any nuanced view about the significance of intoxication in relation to self-defence, in favour of an explicit belief that Mr Rawsthorne's intoxication rendered him indisputably or necessarily guilty, and in particular excluded any reliance on self-defence; in those circumstances it is unsurprising that the prosecutor made a desperate if inelegant attempt to correct the Magistrate.

124. Her Honour's remarks were also unhelpful. It is unlikely that the appellant would have taken any comfort from her Honour's statement that the test that she accepted was, in effect:

in the mind of an intoxicated person ... if ... your Honour accepts were a seven out of 10 intoxication, ... that it's in that frame of mind, that it was not objectively reasonable.

125. I am satisfied that at no stage during the Magistrates Court proceedings did anyone (including her Honour) properly articulate the test for self-defence as it applied in the circumstances of an intoxicated defendant, and I cannot be confident that her Honour properly applied the correct legal principles in relation to an intoxicated defendant.

126. Although as already mentioned, the Magistrate almost certainly did have the proper test for self-defence in mind, I am not convinced that she properly appreciated how the test was to be applied in the case of an intoxicated defendant. However, whether or not her Honour did understand the proper tests, I cannot be confident that in this case she applied them correctly; her Honour's unclear references to the elements of the tests means that no comfort can be taken from her conclusions that:

the prosecution has disproved both contentions beyond a reasonable doubt and the defence fails. If this man had been sober none of this would have happened.

127. I find that appeal ground (d) has been made out.

128. In submissions, counsel for the respondent cited O'Connell v McMennemin [2014] ACTSC 112, in which Refshauge J noted at [107]:

The misapplication of the law of self-defence, however, does not lead to an inevitable acquittal.

129. Accordingly, for the purpose of determining this appeal, the significance of the conclusion that appeal ground (d) has been made out is more usefully considered after reviewing whether her Honour's approach to the evidence, and her findings of fact, would have supported her Honour's conclusions if those findings had been relied on in applying the correct legal principles; that requires consideration of appeal ground (f).

130. The evidence given during the hearing occupied over 70 pages of transcript, as follows:

(a) the taxi driver's evidence (which came out relatively slowly because English was not his first language) took 29 pages;

(b) the informant's evidence took 8 pages, including a brief recall after he had been excused;

(c) Mr Rawsthorne's evidence took 22 pages; and

(d) Ms Chynoweth's evidence took 9 pages.

131. Despite the fact that Mr Rawsthorne gave evidence for almost as long as the taxi driver, her Honour devoted almost all of her review of the evidence to the taxi driver's evidence and to describing the incident from his perspective. Her Honour's summary of the evidence occupied roughly 6 pages of transcript:

(a) most of the first three pages were devoted to summarising the taxi driver's evidence;

(b) another half page was devoted to the informant's evidence;

(c) in the next half page, her Honour began to summarise her findings, largely if not entirely from the point of view of the taxi driver, then briefly digressed to excoriate Ms Chynoweth for expecting the taxi driver to take them to Griffith even though they were not able to pay;

(d) at the beginning of the next page, her Honour interrupted her summary to say that she preferred the evidence of the taxi driver, and to provide some explanation for that preference;

(e) her Honour then devoted the rest of that page to criticising Mr Rawsthorne for endangering all three of the people in the taxi by pulling on the handbrake;

(f) in the last page (in the first paragraph of her comments quoted at [114] above), her Honour mentioned, without comment, Mr Rawsthorne's claim that he acted as he did because he was scared and it seemed to be his only alternative;

(g) finally, in the rest of the material quoted at [114] above, her Honour turned from the facts to the applicable legal principles.

132. In short, her Honour made hardly any reference to the evidence given by Mr Rawsthorne, despite it providing over 22 pages of transcript; during her reasons she mentioned only the following matters:

(a) Mr Rawsthorne's claim that he acted as he did because he was scared and it seemed to be his only alternative;

(b) that, consistently with the evidence of the taxi driver, and the informant's evidence of what Mr Rawsthorne had told the informant immediately after the incident, Mr Rawsthorne had admitted that he punched the taxi driver;

(c) in discussing whether the defendant had abused the taxi driver - that the defendant, while disputing that he called the taxi driver "motherfucker", said that he could have used the word "fuck" when asking the taxi driver to stop and let them out;

(d) in discussing the missing four minutes, that "the defendant didn't give much of an explanation of that either";

(e) that Mr Rawsthorne had given evidence that Ms Chynoweth was upset;

(f) in explaining why she preferred the evidence of the taxi driver, that:

the defendant ... wouldn't have known what was happening on that particular day. His evidence is not credible. He was too intoxicated and he was the aggressor.

133. The prosecutor had provided a much more detailed summary of the evidence of all the witnesses, including Mr Rawsthorne, but for obvious reasons her summary dealt with the evidence in the way that the Crown said it should be received; for that reason it was clearly not an adequate substitute for a proper explanation by her Honour of her own assessment of the witnesses, together with her own summary of the facts that she found.

134. Her Honour, having seen and heard all the witnesses, was clearly entitled, for good reason, to accept the evidence of the taxi driver and reject the defendant's evidence where it conflicted with the taxi driver's evidence. That evidence, however, could not address directly the defendant's beliefs or perceptions, and in failing to deal with at least those parts of the defendant's evidence, her Honour clearly did not give proper consideration to the defendant's claim that he acted in self-defence.

135. Mr Rawsthorne's evidence is summarised at [22] - [37] above. The significant parts of that evidence, in which he made claims raising the possible relevance of self-defence, are discussed below.

136. As already mentioned at [6] above, some of the issues addressed in the evidence do not seem to me to have been significant.

137. Much evidence, and especially cross-examination, was devoted to the exact nature of the blow that Mr Rawsthorne admitted he struck to the complainant, in particular to whether it was an open-handed slap or a closed-fist punch. This was despite the fact that whatever Mr Rawsthorne did, it did not apparently cause any injury and did not persuade the taxi driver to stop the taxi.

138. The nature and level of the force used is certainly relevant to whether force was used in self-defence. However, in the current case the force used was not great, and there is no suggestion that the taxi driver sustained any injury; it is accordingly not clear to me that whether Mr Rawsthorne slapped the taxi driver or punched him affects the answer to the question whether Mr Rawsthorne honestly believed he needed to do what he did in self-defence, or the question whether what he did was, in the circumstances as he perceived them, objectively reasonable. For instance, I heard no suggestion, and nor was it raised in the Magistrates Court, that a slap would have been reasonable in self-defence but a punch would not.

139. Nor can I see that there was any significance in the details of what had gone wrong with Mr Rawsthorne's attempt to make the pre-payment required by the taxi driver, or whether, why or when the taxi stopped for roughly four minutes at a point beyond the taxi rank. It seems consistent with all the evidence:

(a) that the taxi driver initially tried to process Mr Rawsthorne's payment before Mr Rawsthorne had finished transferring money into his account;

(b) that the taxi driver then, believing he had a fare, started the meter (as apparently required by his insurance and other obligations), and moved out of his position at the front of the taxi-rank and through the traffic lights immediately beyond the taxi-rank, before stopping to ensure that the pre-payment was made (which was consistent with both Mr Rawsthorne's evidence and with the evidence from the taxi's security camera);

(c) that Mr Rawsthorne had tried to transfer money to cover the pre-payment, but that the transfer had not been effected as quickly as he expected (which, as well as being consistent with Mr Rawsthorne's evidence, was also consistent with the evidence of when the transfer was recorded in the bank's records).

140. In those circumstances, it would have been understandable:

(a) that the taxi driver became suspicious about whether Mr Rawsthorne was willing or able to make the pre-payment and, possibly, about whether Mr Rawsthorne wanted to get out of the taxi without paying the charge on the meter; and

(a) that Mr Rawsthorne became suspicious that the taxi driver had attempted to take a larger pre-payment than he had specified.

141. It might also have been entirely reasonable for the taxi driver (given that he had started the meter running, and possibly depending on his role in the business of operating the taxi), to demand payment for what was recorded on the meter before Mr Rawsthorne and Ms Chynoweth got out. At the same time, it would be understandable that a young man who apparently had access to little more than the taxi-fare home after his night out might have seen this demand as unreasonable, as well as problematic in terms of how he and his girlfriend were going to get home.

142. Furthermore, the clearly divergent views of the incident seem to be confirmed by the behaviour of the parties after the taxi had been brought to a stop.

(a) Mr Rawsthorne took steps to recover his bankcard (via a "negotiation" rather than any further assault of the taxi driver), and having done so, waited with Ms Chynoweth on the footpath, from where he would have been able to see that a passing police officer had stopped and was talking to the taxi driver, until the police officer was ready to talk to him.

(b) The taxi driver called the police.

143. Mr Rawsthorne and the taxi driver each clearly believed himself to have been in the right, and each man expected that the police would understand his position.

144. In those circumstances, the fact that each party had a different perspective on the events concerned does not establish that either of them was not telling the truth (or could not recall the truth because of intoxication). Nor in my view is that established by the fact that each party had a different recollection of some of the details of the incident, such as how many times the taxi driver sought to process the payment, how many times Mr Rawsthorne asked the taxi driver to stop the taxi, or whether Mr Rawsthorne was especially abusive to the taxi driver.

145. Thus, her Honour's assessment of Mr Rawsthorne's credibility was not necessarily reliable to the extent that it depended on apparent rather than unresolvable conflicts between the perceptions of the two key witnesses, Mr Rawsthorne and the taxi driver.

146. Her Honour's assessment of Mr Rawsthorne's credibility was also problematic to the extent that it relied not only on dismissing evidence given by Mr Rawsthorne that was inconsistent with the taxi driver's evidence but also some of Mr Rawsthorne's evidence that was supported by independent evidence (such as the taxi's security camera). In the end, however, instead of considering the content of Mr Rawsthorne's evidence, her Honour simply dismissed it all as not credible, for the reason that "He was too intoxicated and he was the aggressor."

147. Her Honour's reference to Mr Rawsthorne being "the aggressor" is itself problematic. Even if it only reflected the fact that Mr Rawsthorne was the only person who had used force, it seems to have assumed a conclusion that the force was not justified in self-defence. If it reflected an actual conclusion that Mr Rawsthorne was in fact guilty of the assault offence, it is even less useful as a ground for disbelieving Mr Rawsthorne, since the only reason to make a finding about Mr Rawsthorne's credibility is because it is relevant in determining whether he is guilty or not. If her Honour was actually saying that she did not believe Mr Rawsthorne's evidence because he was the offender, she had fallen into error.

148. As to intoxication, there is no doubt that Mr Rawsthorne was intoxicated, and even, according to his own assessment of 6 or 7 on a 10-point scale, significantly intoxicated. Mr Rawsthorne's own claim to have been "a bit intoxicated" but not "overly out of control", of itself may not have been particularly convincing, but the police officer who spoke to him immediately after the incident gave the following evidence about Mr Rawsthorne's degree of intoxication:

What observation did you make of the defendant?---The defendant - when I had a conversation with him, the defendant, I could smell some intoxicating liquor on his breath and he had blood-shot eyes.

Did he speak with you?---Yeah, I had a quick conversation with him.

Were you able to understand what he was saying?---Yes, I could. Yes.

Was his speech different to what you would ordinarily hear?---Yeah, a bit slurred, but I could understand what he was saying.

...

How did you approach the defendant when you had a conversation with him?---Words to the effect of, "Now, what happened, mate?" And then he told me.

What did he say to you?---"Punched the cab driver and pulled the handbrake on."

...

What did you do after he had said those words to you?---I spoke to his girlfriend and then I made a decision - he was quite compliant with us. There was no reason for us to arrest him. He wasn't going to reoffend. And I told him that I'd give him a call the next week and arrange for a time for him to come in for an interview.

149. This evidence does not suggest that Mr Rawsthorne was so intoxicated on the night as to render all his evidence inherently worthless. Nor as far as I can see was there anything in the content of Mr Rawsthorne's evidence that would have permitted a conclusion that the evidence was inherently incredible. Finally, since her Honour did purport to give reasons for rejecting Mr Rawsthorne's evidence entirely, but those reasons did not include reference to anything to do with the way he gave the evidence, it can be assumed that Mr Rawsthorne's demeanour was not her Honour's reason for rejecting his evidence.

150. Her Honour could not find Mr Rawsthorne guilty of the two offences unless she was satisfied beyond reasonable doubt either:

(a) that Mr Rawsthorne did not have the belief that he had claimed about the need to act in self-defence; or

(b) that even in the circumstances as he claimed to have perceived them, there were no reasonable grounds for him to hold that belief.

151. In this case, there was nothing in the evidence of the other witnesses that was directly inconsistent with Mr Rawsthorne's evidence about his own perceptions during the taxi ride, and his beliefs about what he needed to do given those perceptions. Given the nature of those issues, and the state of the evidence, the only basis on which her Honour could have been satisfied of either of those matters beyond reasonable doubt was by entirely rejecting Mr Rawsthorne's evidence, which she did (although she did not at any stage take the next step of explaining which of the two aspects of the self-defence test had been negated beyond reasonable doubt).

152. If her Honour's reasons for rejecting Mr Rawsthorne's evidence entirely do not stand up to proper scrutiny, then it is appropriate to look at Mr Rawsthorne's evidence to see what impact it would have had on the determination of whether he acted in self-defence.

153. In evidence in chief, Mr Rawsthorne gave the following evidence:

(a) about his understanding of the route covered by London Circuit, and the location of the city police station (at [29] above);

(b) about what happened after his attempt to make the pre-payment had been declined:

What did the taxi driver then say to you?---I said, "we're going to get out and find a different way home," because we didn't trust the situation we were in at the time.

Okay?---He said, "no, you can't leave until you pay $8.40," which was on the meter.

All right [sic]. So when he asked to pay $8.40, what did you do then?---I refused to pay, because he hadn't taken us anywhere.

After you refused to pay, what did he say?---He said, "If you don't pay I'm going to take you to the police station." [P47.6-20;

...

When he said he was going to take you to the police station if you didn't pay the $8.40, what did you do then?---I demanded that he give my card back so we could leave.

Did he agree to give your card back?---No, he wouldn't give me the card back.

After he kept your card, what did he do then?---I obviously kept refusing to pay, so he started driving to the police station, or he said he was going to the police station.

Yes, he said he was going to the police station and the direction he was heading, to you where did it appear that he was going? Towards the police station or somewhere else?---The opposite direction of the police station.

As he did that what did you say to him?---I said, "Pull over."

How many times did you say it?---Like heaps of times.

Did you raise your voice?---Yes.

How are you feeling when he continued to drive away from the police station?---I was feeling like I had no control of the situation, that maybe he had other intentions.

All right. So what did you decide to do?---Well, after I demanded that he pull over the taxi multiple times and he didn't listen to me, I pushed his head and said, "pull over now."

...

Did he stop the car in response to you pushing him in the head?---No, he kept going.

So how were you feeling then?---I was feeling a bit scared. I was - like I didn't know why he wasn't listening to me, even though I'd told him to pull over multiple times.

So what did you do then?---Pulled on the handbrake.

Why did you pull on the handbrake?---To stop the taxi.

Why did you want to stop the taxi?---So obviously me and my girlfriend could get out of the situation that we were in.

...

When you pulled on the handbrake the taxi was going in a straight line, but how fast do you think it was going?---Maybe about 40, 40 or 50 or something.

The taxi driver hadn't slowed down in response to your requests?---No, not at all. If anything he was speeding up.

... you see Constable Wilson speaking to the taxi driver and then he comes over and speaks to you. You were happy to wait to speak to the police officer?---Yes.

You had a brief conversation with him. We heard the officer say that he recalled you saying that you punched him in the face. Do you recall saying that?---No.

What do you recall saying?---I said that I - my exact words were, "Yes, I did hit him and I did pull on the handbrake, but please watch the video."

154. Further relevant evidence was given in cross-examination:

(a) about his level of intoxication (at [33] above); and

(b) about his perception of the circumstances:

So your perception of a taxi driver taking you somewhere other than a police station could have been really incorrect for someone six to seven out of 10 intoxication. Do you agree that would alter your perception if you hadn't drunk anything at all?---Yes. Possibly, yes.

So when the taxi driver clearly told you that he was taking you to the police, perhaps if you had been of more sober mind you would have seen that he was taking you to the police station?---At the time I didn't realise that it was actually a circuit that went around, and as far as I was concerned it was going the opposite direction to the police station.

Your observations of your girlfriend, she was pretty drunk?---Yes, she was pretty drunk.

...

Yes. So perhaps your concerns, when you're not sober, were even more escalated because you knew your girlfriend wasn't well. Is that fair to say?---Yes.

155. Mr Rawsthorne also gave evidence about the apparent confusion between him and the taxi driver about Mr Rawsthorne's attempts to make the pre-payment. In cross-examination, he said he was sure that he had told the taxi driver that he was transferring money, and that the taxi driver had moved the car out of the taxi rank while he was waiting for the transfer. However, the taxi driver had first tapped his card "straightaway, even though I told him that I was transferring the money", then waited for him to finish transferring, and then tapped the card again. Mr Rawsthorne said "I don't know what happened there, but it didn't work."

156. He explained that the transfer had been declined a second time after he had transferred the money into the account. He said that the taxi driver had not told him that he was trying the card for the third time, and the fact that he (Mr Rawsthorne) still had his phone in his hand must have been clearly visible to the taxi driver.

157. Mr Rawsthorne denied that the taxi driver had asked him and Ms Chynoweth to get out of the taxi, but said that the taxi driver had retained his bankcard.

158. Asked about his dealings with the taxi driver, Mr Rawsthorne gave the following evidence:

So is it your recollection that you were cool, calm and collected throughout that exchange of your card declining twice?---Yes. I didn't raise my voice or anything until after he wouldn't give me the card so we could get out. But until then I was perfectly polite to him.

159. I note that although this evidence is clearly self-serving, it is not inconsistent with the evidence of the police officer who spoke to Mr Rawsthorne only minutes later (at [148] above).

160. While accepting that the taxi doors weren't locked, Mr Rawsthorne maintained that while the taxi driver retained his card, he "couldn't really leave" and that he became scared after the taxi started moving, giving this evidence:

HER HONOUR: You said you were a bit scared when you were moving?---Yes, while the car was moving. So I couldn't get out while the car was moving because I obviously would have hurt myself. I wasn't scared up until the point where the car started moving, going away from the police station when he was saying that we were going to the police station.

MS CLARKE: So when the car first went into motion, when he said he was taking you to the police station, you weren't scared then?---Yes. I was starting to get a bit agitated because like he was taking us without my consent.

What do you mean without your consent?---Like I hadn't consented for him to take me to the police station. He was driving there without my approval.

But you just told the court in your evidence that you didn't believe he was taking you to the police station, he was taking you to some unknown place?---Well, he was driving. I'm not sure where.

So he could have been just taking you to Griffith. You go in that direction to Griffith?---He wasn't saying he was taking me to Griffith.

But you do go in that direction to Griffith, don't you?---Yes. He was saying he was taking me to the police station, and I believed that was the opposite direction to the police station. He never said that he was taking me to Griffith.

So at that point you've moved from agitation to being scared?---Yes.

It's your evidence now that at no point did you ever think he was going to take you to the police station?---No.

You also didn't believe that he was going to take you to Griffith, even though that's the direction to Griffith?---Yes. He said he was taking me to the police station and he was not travelling in the direction of the police station. So I didn't know where he was taking me at the time.

...

Did you think to confirm with him, "is this the direction of the police station," or, "Where are you taking me"?---Yes, I did say, "Where are you going? Stop the car," all of them things.

...

Where did he say he was going?---He didn't respond to me.

161. Asked about what he told the police officer, and about his state of mind, Mr Rawsthorne said:

And you weren't feeling great because in your mind, you had been driven to a place you didn't think you were supposed to go?---Yeah, I was pretty distraught at the time. I was a bit worried about - - -

Yes. Disoriented in your thoughts?---Yeah. I was a bit worried about my girlfriend's safety as well at the time, so there was a lot going through my head.

Worried about, as you said, any alternative motives?---Yeah.

162. Mr Rawsthorne said that he had not tried to call the police as the taxi drove around London Circuit, but agreed he possibly could have tried. He gave further evidence:

You could have said, "Well, if you're taking me to the police station, good. I want to go to the police station". You could have said that?---I could have, but I didn't feel like I was going towards the police station at the time.

Did you tell him at any time you felt threatened, you felt scared?---No.

...

So the only way you could respond at the time on your evidence is to slap him with some force across his face?---I didn't really assert the force until after I was in contact with him. I just shoved his head and said, "Pull the eff over", pretty much. He didn't respond so then I put on the hand brake.

Did you not think those actions were dangerous within themselves, for yourself and your girlfriend?---I thought at the time they were definitely less dangerous than being taken away against our will to an unknown location.

163. In summary, Mr Rawsthorne gave extensive evidence about his reasons for acting as he did, and the circumstances in which he perceived that his actions were necessary in defence of himself and Ms Chynoweth.

164. Furthermore, while there were discrepancies in the details given by Mr Rawsthorne and the taxi driver about their interaction and the circumstances more generally, there was nothing in the taxi driver's evidence that directly undermined Mr Rawsthorne's claims. In particular, to the extent that the complainant presented a picture of a more abusive passenger than Mr Rawsthorne describes himself as having been, that was not inconsistent with Mr Rawsthorne's claim of being, initially, worried about how he and Ms Chynoweth were going to get home and then, scared and worried that they were being abducted.

165. As already noted at [104] above, once the defence has discharged the evidential burden, the prosecution must show beyond reasonable doubt either:

(c) that the defendant, in his intoxicated state, did not have an honest belief that it was necessary in self-defence to do what he did; or

(d) that even if the defendant did have such a belief, there were, even in the circumstances as he perceived them in his intoxicated state, no reasonable grounds for that belief.

166. If her Honour had applied the proper tests as identified above, and had given proper consideration to Mr Rawsthorne's evidence, she would have had to address the following matters:

(a) His claim that the problems with the taxi driver's attempts to process his bank card payment had led him to suspect that the taxi driver had tried to process a larger payment than he had specified.

(b) His claim that he did not realise that London Circuit was a "loop" road which led to the police station in each direction, and accordingly believed that, contrary to what he had said, the taxi driver was driving away from the police station.

(c) His concerns about Ms Chynoweth, who was apparently more intoxicated than he was.

(d) His claimed concern, arising from those matters taken together, that he and Ms Chynoweth were possibly being abducted and were accordingly in danger.

(e) His actions, after the taxi had been brought to a stop and the informant arrived, in remaining at the scene and volunteering what he had done when he spoke to the police officer.

(f) That Mr Rawsthorne, although clearly intoxicated, was not too intoxicated to use his phone to transfer money between his accounts and was not too intoxicated to deal with the informant in such a way that the informant was satisfied that he would not re-offend and that there was no other reason to arrest him.

167. Mr Rawsthorne's actions were obviously aimed at stopping the taxi so he and Ms Chynoweth could get out. Clearly, even if the taxi was only travelling at a speed of 40 kph, it would not have been reasonable for Mr Rawsthorne to try to escape from the taxi (Zanker v Vartzokas, at [77] above), let alone to try to rescue an intoxicated and sleepy Ms Chynoweth from the back seat in the course of his own escape. Using his phone to contact the police would have been somewhat more rational, but given Mr Rawsthorne's claimed uncertainty about where he was being taken, that approach might not have seemed immediately productive.

168. However, her Honour did not refer to any of these matters, except to make it clear that she was not impressed with Mr Rawsthorne's claim of concern for Ms Chynoweth, given that they had been out drinking and her interpretation of the evidence was that he did not have enough money to get them both home. Certainly her Honour did not explain why she was confident in rejecting all of them beyond reasonable doubt, except on the basis that none of Mr Rawsthorne's evidence was credible.

169. Given the evidence of the matters mentioned at [166] above and the absence of any evidence contradicting that evidence (directly or indirectly), rejecting Mr Rawsthorne's evidence in its entirety seems to have been the only way in which her Honour could have been satisfied beyond reasonable doubt that Mr Rawsthorne, in his intoxicated state, had no honest belief that his actions were necessary in self-defence, or that if he had such a belief, that there were no reasonable grounds for it even the circumstances as he perceived them.

170. If her Honour had not been able to exclude the existence of that honest belief beyond reasonable doubt, she would, in order to find Mr Rawsthorne guilty, have needed to be satisfied beyond reasonable doubt that, even perceiving that he and Ms Chynoweth were possibly being abducted, there were no reasonable grounds for Mr Rawsthorne to believe the actions he took were necessary in self-defence. It is worth noting at this point that his actions seem to have been solely aimed at stopping the taxi so he and Ms Chynoweth could get out; while clearly neither acceptable nor sensible in the actual circumstances, those actions could be seen as relatively moderate in the circumstances of an honest belief that he and Ms Chynoweth were possibly being abducted.

171. However, as noted above, neither the state of the evidence, nor her Honour's expressed reasons, could have provided adequate grounds for rejecting Mr Rawsthorne's evidence as not even raising a reasonable doubt about what Mr Rawsthorne perceived or believed during the taxi ride.

172. I am inclined to agree with counsel for Mr Rawsthorne that her Honour appears to have fallen foul of the principle set out in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186, in which Ipp JA said at 191:

It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: "I believe Mr X but not Mr Y and judgment follows accordingly". That is not the way in which our legal system operates.

173. Even less acceptable is for the judicial officer to prefer the evidence of one party without even adverting to the evidence given by the other (at [146] above), and on grounds one of which seems to involve a pre-empting of the ultimate decision (at [147] above) and the other of which is not, in the extreme form relied on by the judicial officer, supported by any of the evidence (at [148] and [149] above).

174. Appeal ground (f) claims a grab-bag of errors by her Honour in her treatment of particular aspects of the evidence. Most of them, while possibly raising justified criticisms of her Honour's approach, do not seem to be relevant in determining whether her Honour's verdicts can stand. However, for the reasons set out above, I am satisfied that her Honour's treatment of the evidence was unsatisfactory in significant ways. The only remaining issue is the consequence of those conclusions.

Unsafe and unsatisfactory (appeal ground (h))

175. The claim that a verdict is "unsafe and unsatisfactory" is explained in M v The Queen [1994] HCA 63; (1994) 181 CLR 487. At 494-495, Mason CJ and Deane, Dawson and Toohey JJ said:

9. ... In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court 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. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.

(citations omitted)

176. By reference to the law that should have been applied, and the evidence that was before her Honour, there is a doubt in my mind about Mr Rawsthorne's guilt that I consider her Honour should also have experienced. If there were reasons that could have resolved that doubt in the way that Mr Rawsthorne, or any other witness, gave evidence, they were not mentioned by her Honour and they do not appear from the transcript.

177. For reasons set out above, it seems that her Honour did not experience that doubt because she did not properly apply the relevant law and did not properly consider and analyse the evidence before her, and through those failures reached an unsustainable conclusion about Mr Rawsthorne's guilt. The Magistrate's treatment of the character evidence and her flawed approach to assessing Mr Rawsthorne's credibility may also have contributed to that unsustainable conclusion.

178. The totality of the evidence before the Magistrate, if it had been properly assessed, lacked probative force in relation to establishing beyond reasonable doubt that Mr Rawsthorne did not have an honest belief that his actions were necessary in self-defence. Especially in the absence of specific prosecution submissions about how the evidence should have been interpreted, that evidence also lacked probative force in establishing that in the circumstances as Mr Rawsthorne claimed to perceive them, there were no reasonable grounds for any belief that the actions he took were necessary in self-defence. Her Honour's approach to the evidence (even apart from her failure to apply the law properly) raises the real possibility that "even making full allowance for the advantages enjoyed by [the Magistrate], there is a significant possibility that an innocent person has been convicted".

179. I am accordingly satisfied that "upon the whole of the evidence", properly assessed, it was not open to the Magistrate to be satisfied beyond reasonable doubt that Mr Rawsthorne had not acted in self-defence, and that the verdicts were accordingly unsafe and unsatisfactory.

180. Accordingly, the appeal must be upheld, the convictions recorded by the Magistrate must be set aside, and verdicts of not guilty must be recorded on both charges.

I certify that the preceding one hundred and eighty [180] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold