THOMAS -v- CHRISTIAN [2021] WASC 151 (14 May 2021)

1. Whilst the basic facts were not in dispute, the defence case was that the appellant's actions were not such as to be likely to cause fear to any person. In addition the defence argued that the appellant acted in circumstances of sudden or extraordinary emergency. In particular, that the appellant believed that his son and other members of his family were at risk of being seriously harmed and that the carrying of the boomerang was a necessary response to that emergency. Further, it was submitted that his action in carrying the boomerang was a reasonable response to the emergency in the circumstances as he believed them to be and that there were reasonable grounds for his beliefs.
2. In her oral reasons for decision, the magistrate addressed the elements of the offence and then turned to the defence of emergency. In particular she said:

Now, that might be the end of it, but the defence of emergency has been raised, so I do need to address that. Now, it has been said to me that - and I accept that the defence of emergency can apply to an offence under section 68, so I certainly accept that. It's said to me that, on this particular night, the accused believe that a circumstance of sudden or extraordinary emergency existed. With respect to that, reference is made to the phone call that he received, and as I say, I accept he received that phone call and that Ms Nelson was very concerned and worried about what was happening and was saying, 'They're mobbing us,' words to that effect.

In the circumstances, I can accept that the accused believed that an emergency existed. I could also accept that he felt that at least going to the scene was a necessary response to that emergency that he felt was playing out, but even if I accept those subjective parts of the defence, I also have to consider the objective parts, the first being that the act or omission, so, in this case, the going armed, was a reasonable response to the emergency in the circumstances as the person believes them to be, so that combines the subjective belief with an objective reasonable response; and, secondly, that there were reasonable grounds for those beliefs, and that, I think, is where the defence falls apart, because the accused - as I say, I accept the phone call happened.

I accept that the accused was concerned, but as for reasonable grounds to believe that something specifically was happening to his son - and I say that because he himself said that it was parental instinct that kicked in - I can't find - I do not find that Ms Nelson's phone call was sufficient to ground a reasonable belief that that's what was happening. Ms Nelson was clearly not sure exactly what was going on or who was involved.

All she knew was that there was a very big group of people, and there were people, on her evidence, being mobbed, but she couldn't be sure who, and then, even if - sorry - and then going back to whether the act or omission was a reasonable response to any such emergency - and this is where I was questioning defence counsel when he was making submissions to me, because it seemed to me that he was saying, and I think he accepted that what he was saying, was that going into a situation like that with a preparedness to use a weapon if necessary is reasonable.

That might be acceptable if a person is in the situation and finds himself suddenly surrounded and with no other reasonable way of getting out, but that's not this case. The accused willingly went to the scene, having received information that concerned him. He willingly got out of the car, took the thing with him and proceeded down the road. To my mind, it is quite concerning that it has been suggested to me that that's a reasonable way to respond to concern.

Now, I know that people have views about the efficacy of the police and whether they assist in ways that they should. I don't know if that played into this at all, but the first port of call, surely, in the society that we have is to call on the force that is there to protect us. We are not yet, thankfully, in a situation where we don't have police and we are left to fend for ourselves, so I can't accept that submission, and I don't, and in my view, that defence of emergency is not made out, on the balance of probabilities, so for all those reasons, I find that all the elements of the offence are made out beyond reasonable doubt.

I find that no defence applies that the accused is, therefore, guilty of the offence.[1] (emphasis added)

1. The grounds of appeal are as follows:
   1. The learned magistrate erred in law by applying the incorrect burden and standard of proof to the defence of emergency that was raised during the trial.
   2. The learned magistrate erred by failing to disclose in her reasons how the prosecution proved beyond reasonable doubt that the defence of emergency did not apply.
2. Ground 2 does not allege a general failure to provide adequate reasons. Rather it is an allegation that arises from ground 1. Accordingly, if ground 1 succeeds it is unnecessary to deal with ground 2.

1. Section 25 of the Criminal Code provides as follows:
   1. Emergency

(1) This section does not apply if section 32, 246, 247 or 248 applies.

(2) A person is not criminally responsible for an act done, or an omission made, in an emergency under subsection (3).

(3) A person does an act or makes an omission in an emergency if -

(i) circumstances of sudden or extraordinary emergency exist; and

(ii) doing the act or making the omission is a necessary response to the emergency;

and

(b) the act or omission is a reasonable response to the emergency in the circumstances as the person believes them to be; and

(c) there are reasonable grounds for those beliefs.

1. A claim that a person was acting in circumstances of sudden or extraordinary emergency is usually described as a defence. Such a description may suggest that the defence bears some onus of proving that this exception to criminal liability applies in a particular case. In fact that is not the case. Section 25, like a number of other provisions in ch V of the Criminal Code, provides for circumstances in which an act that would otherwise be criminal is excused or justified by law.[2] These provisions do not impose any onus on the defence. Where raised in a trial the onus is on the prosecution to disprove that the excuse applies.[3]
2. The defence of emergency, like that of duress in s 32 of the Criminal Code, exists to meet cases where the circumstances overwhelmingly impel disobedience to the law. The corollary is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law.[4]
3. The defence of emergency will be raised where there is evidence which, taken at its highest in favour of the accused, could lead a reasonable finder of fact, properly instructed, to have a reasonable doubt that each of the elements of the defence has been negatived.[5] In essence this means that there must be evidence that raises the reasonable possibility that each of the elements of the defence existed. In practical terms this often means that an accused person will need to give or adduce evidence that provides a factual foundation for the defence. This is why it is sometimes said that the defence has an evidential onus. However to describe this as an onus is something of a misnomer as there can be circumstances in which the factual basis for the defence is provided by evidence adduced from prosecution witnesses. In any event, where there is evidence that could support such a defence the onus is then on the prosecution to exclude that defence beyond reasonable doubt. If the defence of emergency is not excluded to this standard the accused is entitled to be acquitted.
4. The defence of emergency has a number of component parts. Accordingly there must be evidence which could support the existence of each of those components. The prosecution can negate the defence of emergency by proving beyond reasonable doubt that:

(a) the accused did not hold either of the beliefs specified in s 25(3)(a); or

(b) the accused's act or omission was not a reasonable response to the emergency in the circumstances that the accused believed them to be; or

(c) there were no reasonable grounds for the accused's beliefs.[6]

1. In the present case the magistrate correctly accepted that the defence of emergency had been raised on the evidence and needed to be addressed. Her Honour's analysis involved a consideration of whether she accepted the evidence going to each of the elements of emergency. She said that she accepted that the appellant had a subjective belief that an emergency existed and that attending at the scene was a necessary response to that emergency. She did not specifically refer to whether carrying a weapon was believed by the appellant to be necessary. However, it can be assumed she accepted this as she said that the defence failed in respect of the objective components. In this regard she said that the telephone call from the appellant's partner's niece was not sufficient to ground a reasonable belief that 'something specifically was happening to his son'. She then said that going to the scene armed was not a reasonable response to the emergency as perceived by the appellant.
2. Had her Honour said no more than this it might have been open to infer that she had satisfied herself that the defence had been excluded by the prosecution because the objective elements of it had been excluded beyond reasonable doubt. However no such inference can be drawn because her Honour concluded by expressly stating that she was satisfied that the defence of emergency had not been made out 'on the balance of probabilities'. This makes it clear that her Honour operated on the erroneous view that the onus was on the appellant to make out the defence and that the standard required was the balance of probabilities. The proper approach would have been to ask whether the prosecution had negated any of the elements of emergency beyond reasonable doubt.
3. In these circumstances ground 1 of the appeal must succeed.
4. It is not possible for this Court to make an assessment of whether the defence was excluded to the requisite standard as this requires an assessment of the credibility of the evidence given by the witnesses. The conviction must be set aside and the matter remitted to the Magistrates Court for a retrial before a different magistrate.

1. The orders are as follows:
   1. Leave to appeal on ground 1 is granted.
   2. The appeal is allowed.
   3. The conviction is set aside.
   4. The matter is remitted to the Magistrates Court for a retrial.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

[2] For example s 23A, s 23B, s 24 and s 32. Self‑defence under s 248 is also of the same effect.

[3] See Petersen v The State of Western Australia [2016] WASCA 66; (2016) 50 WAR 45.

[4] Floyd v The State of Western Australia [2013] WASCA 33 [25].

[5] Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [36].

[6] Petersen v The State of Western Australia per Corboy J [131]; see also NPK v The State of Western Australia [2020] WASCA 50 [20] ‑ [23].