Walter Christopher Saunders v Wesley James Herold Sca [1991] ACTSC 82; (1991) 105 FLR 1 (9 October 1991)

SUPREME COURT OF THE ACT

WALTER CHRISTOPHER SAUNDERS v. WESLEY JAMES HEROLD
S.C.A. No. 263-4 of 1990
Appeal from Magistrates Court - Assault
[1991] ACTSC 82; (1991) 105 FLR 1

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

Appeal from Magistrates Court - Offensive behaviour - Whether language used "offensive" in circumstances - Relevant tests.

Assault - Self-defence - Relevant tests - Whether appellant had honest belief that an assault was about to take place upon him - Relevant considerations - Appellant an Aboriginal affected by alcohol.

Australian Federal Police Act 1979, s.64(1)

Crimes Act (NSW) 1900, s.546A, s.556A

Zecevic v DPP (Vic) [1987] HCA 26; (1987) 162 CLR 645

R v Honeysett (1987) 10 NSWLR 638

Ball v McIntyre (1966) 9 FLR 237

Khan v Bazeley (1986) 40 SASR 481

McCormack v Langham (NSWSC; Studdart J.; 5/9/91; unreported)

Thommery v Humphries (NSWSC; Foster J.; 19/6/87; unreported)

Evans v Frances (NSWSC; Lusher A.J.; 10/8/90; unreported)

HEARING

CANBERRA
9:10:1991

Counsel for the Appellant: Mr G. Walker

Instructing solicitors: Messrs Crossin Power Haslem

Counsel for the Respondent: Mr Chilcott

Instructing solicitors: Director of Prosecutions

ORDER

In relation to the charge of offensive behaviour, the appeal be upheld and the finding of guilt and the penalty imposed be set aside.

In relation to the charge of assault, the appeal be upheld and the finding of guilt and the penalty imposed be set aside.

The informations be dismissed in both cases.

DECISION

On 1 August 1990, the appellant was found guilty by Special Magistrate Murphy of two offences. The first was that he, on 10 March 1989 "did behave in an offensive manner in a public place, to wit, Childers Street". The second was that he, on 10 March 1989, "did assault Wesley James Herold, then being a member of the Australian Federal Police, in the execution of his duty".

2. After hearing submissions, the learned Special Magistrate then disposed of the latter charge by ordering the appellant to be released without conviction on entering into a recognizance in the sum of $500.00 to be of good behaviour for 12 months. The offensive behaviour matter was "merged" with that matter.

3. Notices of Appeal to this Court were lodged on 22 August 1990. I now proceed to deal with each appeal.
Re: Offensive Behaviour

4. On 10 March 1989, at about 11.00pm, police attended at the Canberra Workers Club, Childers Street, Canberra City. Constable Herold, the respondent, was with Constable Carters. Three other police officers, Constables Upston, Gallagher and Kinloch, were also present.

5. In the foyer, three persons were having a "small argument" with the duty manager. They were asked to leave. They left quite readily. The appellant was one of those persons. They spoke, quietly if not amicably, with Constable Upston some distance away from the respondent.

6. The respondent says the appellant then approached him and the following conversation ensued:
Appellant: "I want to know why we had to leave."

Respondent: "You've already been told by the
Manager why, so why don't you just
Appellant: "I've done nothing wrong, can you tell me where
the fuck I'm staying?
Respondent: "Watch your language."
Appellant: "Why don't you cunts just fuck off and leave us alone?"
Respondent: "You're under arrest for offensive behaviour.
Get in the truck."

Constable Gallagher and the respondent then placed the appellant in the police vehicle.

7. The respondent says that at the time of this conversation the appellant was speaking in "quite a loud voice". At the time there were some persons entering or leaving the Club. The respondent says,

"And there would have been about ten people in the vicinity
of the area when I had the conversation with the defendant
that would have been within his (sic) hearing."

I take that to mean, though clumsily expressed, that there were about ten persons within earshot of the appellant when he spoke. It is not clear if that number was intended to include other police and the companions of the appellant.

8. Constable Gallagher gave evidence of this incident also. His account of the words used was, not surprisingly, identical. His account of the surrounding circumstances was not.

Q And at the time of the conversation that you
have recounted, are you able to say whether any
members of the public were in the vicinity?
A Yes, there were numerous members of the public
- about 15 or 20 members of the public of both sexes
in the area.
Q And about how far away were these members of
the public from the place where the conversation was
taking place?
A Well, they were walking right past us because
we were standing right in the middle of the walkway to
the road and they were walking right past us.
Q And about how (sic) from the entrance to the
Canberra Club (sic) was that?
A Well, we would have been about ten metres away
from the front door.

9. Constable Carters was also present. She gave evidence of the conversation, apparently without reference to notes. The only material difference was that she alleged the appellant, after being told "Watch your language", said,

"We haven't done anything wrong. Why don't you fucking
cunts just leave us alone?"

10. Her account of other persons being present was also somewhat different.

11. She was asked by his Worship why the police did not proceed by summons against the appellant. She said that when the appellant-

"...reapproached us at the time we were actually standing
around a group of people who had actually come out of the
club because of the incident that had happened in the club
that caused the gentlemen to be asked to leave. And I
guess when Mr Saunders reapproached us and like the - the
conversation probably only took, I suppose, 15 or 20
seconds and the other two approaching us as well I guess it
was difficult to say whether the situation was going to get
volatile from there or whether that was going to be the end
of it. It was just at the time it appeared that the
aggression was rising again."
Q And if I just take you back to that
conversation, how you referred to other people, can
you say how many people were present at the time of
that conversation with the defendant
A Standing in the exact area with us there was at
least five females. A little bit further away, like
probably from myself to the wall away, there was two
or three couples.

12. No other police officer or member of the public was called by the respondent to give evidence of the conversation nor was any explanation tendered as to why such evidence was not called.

13. The appellant gave evidence also. His account of the conversation is materially different. It is as follows:
He said to the three police officers, presumably the respondent, Gallagher and Carters, "How are you going?" He said those words in a manner that was "a bit smart". I imagine he meant to convey irony or lack of respect. He expressed it as saying he tried to convey ""Well, I spoke to your boss" sort of thing".

14. The respondent then took the appellant's arm, pushed him away and said "Fuck off". The appellant pushed the respondent's arm away, squared off, stepped towards the respondent and said to him "Go and get fucked". The respondent said "Fuck off" and the appellant repeated the words "Go and get fucked":

Respondent: "What did you say?"
Appellant: "You heard."

They pushed each other and the appellant then said, "Why don't you go and get fucked?"

15. The respondent then said, "Right" and arrested the appellant.

16. The two persons then with the appellant did not give evidence but their absence was satisfactorily explained.

17. The appellant conceded that the above conversation was "fairly loud ... more so on my side".

18. The prosecutor put to the appellant in cross-examination, the following version:

Appellant: Why was I asked to leave? I want to know
why I was asked to leave.
Respondent: You have already been told by the Manager
why, why don't you just go
Appellant: I have done nothing wrong, can you tell me
where to fucking stand?"

19. That latter suggestion was clearly contrary to what had been said by the prosecution witnesses.

20. In cross-examination, the respondent conceded that he did not consider the use of the word "fucking" as an adjectival expletive to be "intended" as offensive. Hence he said he warned the appellant "Watch your language". He said also that there were other people present and,

"...if a person such as the defendant was to swear in front
of a policeman and (sic) did nothing about (sic), then I am
not seen to be doing my job."

21. Otherwise, nothing remarkable is revealed by the cross-examination of the police officers called by the prosecution.

22. In his cross-examination, the appellant conceded that, during the evening, he had consumed a considerable amount of intoxicating liquor. He, nevertheless, claimed to remember the events of the evening quite clearly.

23. His Worship accepted the police evidence. In doing so, the cross-examination of the appellant was referred to. Referring to the appellant's claim that he had been told to "fuck off" by the respondent and so used similar language in response, his Worship said:

"...when later questioned by Ms Carlin on this point, it
was clear in his evidence-in-chief in answer to questions
from Mr Walker, that the allegation of "fuck off" did not
occur until after the defendant had said this to the police."

24. His Worship then said he accepted the police version of what happened. His Worship did not refer to the contradiction between Constable Carters' evidence and that of other police nor to the entirely different version put, presumably on instructions, by the prosecutor to the appellant.

25. I could not find anywhere in the appellant's evidence where he contradicted his evidence-in-chief.

26. It is no answer to a charge of offensive behaviour to say that the behaviour was provoked. It is to my mind no different in effect for the appellant to call out to the respondent, twice, "Go and get fucked" in a reasonably loud voice as opposed to calling out "Why don't you cunts fuck off and leave us alone?" (or whatever were the precise words). There is no doubt, in each case, that the appellant spoke in an aggressive tone. He was, of course, somewhat affected by intoxicating liquor so that an overly loud or exaggerated reaction would not be surprising.

27. There is no doubt that his Worship assumed that the mere use of such language in the circumstances described amounted to offensive behaviour.

28. The question then is whether the use of such language outside the Canberra Workers Club at 11.00pm on a Friday night, in the context of an angry exchange in a loud voice with a police officer would be likely to be perceived as offensive by the persons, whether present or not, who might be expected to be exposed to such behaviour.

29. What constitutes behaving in an offensive manner depends very much on the circumstances. Conduct and language engaged in at a football match or on a tennis or squash court may be acceptable, or, at least, unremarkable, but offensive if engaged in during a church service or a formal social event.

30. With respect, I consider the approach of Kerr J. in Ball v McIntyre (1966) 9 FLR 237 to be entirely appropriate to the present case:

(241) "...some conduct which is hurtful or blameworthy or improper
is not offensive within the meaning of the section. What has to be
considered in the particular case is whether the conduct in
question, even if in some sense hurtful or blameworthy, or improper,
is also offensive within the meaning of the section. It is
important, I think, for this point to be made because it is
sometimes thought that it is sufficient to constitute offensive
behaviour if it can be said that conduct is hurtful, blameworthy or
improper, and thus may offend.
Conduct which offends against the standards of good taste or good
manners, which is a breach of the rules of courtesy or runs contrary
to commonly accepted social rules, may well be ill-advised, hurtful,
not proper conduct.
People may be offended by such conduct, but it may well not be
offensive conduct within the meaning of the section. Some types of
political conduct may offend against accepted views or opinions and
may be hurtful to those who hold those accepted views or opinions.
But such political conduct, even though not thought to be proper
conduct by accepted standards, may not be offensive conduct within
the section. Conduct showing a refusal to accept commonly held
attitudes of respect to institutions or objects held in high esteem
by most may not produce offensive behaviour, although in some cases,
of course, it may.
This charge is not available to ensure punishment of those who
differ from the majority. What has to be done in each case is to
see whether the conduct is in truth offensive."

31. Disobedience to a police request to desist from conduct cannot be offensive behaviour if the conduct persisted in does not itself warrant that characterisation. Indeed, apart from some statutory exceptions, usually related to traffic matters, police officers have no greater power to order people to desist from lawful conduct than anybody else has.

32. An illustration of the importance of the time and place of the impugned conduct is to be found in Khan v Bazeley (1986) 40 SASR 481. On a Friday afternoon, the appellant in that case had paraded in Commercial Road, Port Augusta (South Australia) in a T-shirt on which was inscribed in prominent characters "FUCK 'EM" and below that in smaller letters, "if they can't take a joke". O'Loughlin J. accepted that it was not necessary to prove that any person was actually shocked or alarmed by the words so displayed. The act of displaying the words was, of course, "behaviour". In determining whether it was "offensive" however, his Honour approached the matter as follows:

(486) "I readily concede that one must allow for the fact that
behaviour that would be offensive in some circumstances may not
properly be regarded as offensive in different circumstances. But
it must not be over-looked that in this particular case the learned
Stipendiary Magistrate was concerned with an alleged offender
walking down the main street of Port Augusta where there were
present - or where one would reasonably expect there might be
present - people of all ages and of both sexes. The learned
Stipendiary Magistrate is the resident magistrate for that area and
an appeal court is entitled to rely upon the presumption that he
would well know and comprehend, through his judicial office and
experience, the standards of the community and the reasonable
expectations of the community."

33. In this case, of course, the positions of advantage are reversed. The learned Special Magistrate is resident in a Victorian country town which may or may not boast an equivalent establishment to the Canberra Workmen's Club.

34. It is, in my opinion, relying on my knowledge of the standards of the community and the reasonable expectations of the community, quite unlikely that the reasonable person to be postulated as hypothetically present in the circumstances of this case would have been offended by any of the various versions of what the appellant allegedly said. The words used were vulgar and crude. They were calculated to add emphasis to a verbal disagreement with a police officer.

35. However, I cannot agree, in this day and age, that such conduct would be offensive in the circumstances referred to here. It would of course, be different if that behaviour was perpetrated in other circumstances, particularly where the conduct is not, as it was here, a mere by-product of a disagreement about something else. There can be no general invitation for persons to shout vulgar and coarse phrases in a public place, particularly where persons who may be more representative of a general cross-section of the community could be expected to be present and affected by the conduct in question. In this respect, I agree with the comments made recently by Studdart J. in the course of giving judgment in the case of McCormack v Langham (NSWSC; 5/9/91; unreported).

(4) "What might pass as inoffensive language if exchanged
between footballers in an all male environment in a
dressing room after a match might well offend if repeated
in mixed company at a church fete."

36. His Honour then rejected a submission supporting the Magistrate's finding that an utterance at 12.45pm on 1 January 1991 at an establishment known as "Leo's Hot Food" in the presence and hearing of at least 30 adults and children "Watch these two fucking poofters here, how they fucken persecute me" (referring to the two police) could not constitute offensive behaviour.

(7) "I reject the contention that the community's
standards have slipped to such an extent that the
utterances attributed to the respondent in the present case
could not, as a matter of law, constitute an offence.
Indeed I would regard the prosecution case as being a
strong one and I note that the language complained of was
spoken in a loud voice in the presence of thirty people,
including adults and children." (Emphasis mine.)

Whether the respondent's conduct in that matter was offensive would depend on the facts and circumstances as found by the Magistrate.

37. Reference was also made in that case to two other unreported decisions. In Thommery v Humphries (NSWSC; 19/6/87; unreported) Foster J. decided that:

(2) "The words themselves are quite unacceptable in any
civilized circumstances. They are not words that require
further explanation by way of indication that they would
have special meaning to persons hearing them. They are in
themselves words which could only be described as offensive
to any reasonable hearer."

38. The words referred to were uttered in the foyer of the Darlinghurst Police Station. Members of the public, no doubt including mere enquirers of the police as well as offenders, suspected offenders and police of each sex were, in fact, present. The utterances were:

"You fucking moll you, you fucking moll you" and "Cunts,
cunts."

Those words were, it seems, addressed to a female police officer. The matter was remitted back to the learned Magistrate for her to decide if she was satisfied beyond reasonable doubt as to whether the case was, in fact, made out.

39. It is interesting to note that it seems more to be the case that a male person not offended by indecent words is offended by their utterance in the presence of a female person even if that female person is herself not shown to be offended. However that may be, and I suspect it is an attitude peculiar to males of the pre-feminist era, it does not necessarily mean that such utterances in the presence of such males would not be offensive behaviour given their presence or likely presence.

40. Lusher A.J. made a similar finding to that of Foster J. in Evans v Frances (NSWSC; 10/8/90; unreported). There the alleged offender had, in a public street, in the presence of 20 persons made the following loud utterances:

(i) "You pricks. I want my fucking keys."
(ii) "I lost them in a club down the road and those
cunts won't let me in."
(iii) "You fucking useless cunt."

41. It was submitted that the reasonable man would not be personally offended by the words themselves. His Honour said, as to that hypothetical individual:

"He has some sensitivity, I should have thought, to social
behaviour, social expectations in public places where other
people are."

42. There is some risk in applying such a test of creating a myth. If the words uttered will not offend the reasonable person hypothetically present to hear them, save in the sense that such person would believe others should be offended by them, it seems difficult then meaningfully to categorise the behaviour in question as being "offensive".

43. It is enough for present purposes to note that, in the absence of a group of school children, aged pensioners or a congregation of worshippers gathered outside the Canberra Worker's Club, there was not likely to be anyone present who would, rightly or not, be considered by the reasonable bystander to be offended so as to indirectly offend that bystander. The reasonable bystander would not in the absence of such a person be offended. I note that none of the police claimed to be personally offended. I do not think the reasonable bystander would regard the presence of a police officer as requiring restraint in the use of indecent language and be offended at its non-exercise. He or she may well have believed that the appellant was likely to become involved in an arrest if he used such language to police. However, that expectation which the respondent duly satisfied is not, in my view, to be rightly described or characterised as offensive behaviour.

44. I uphold this appeal and dismiss the information.
Re: Assault

45. The charge of assault relates to an incident which took place after the appellant was taken to City Police Station following his arrest for offensive behaviour. At the police station, the appellant was placed in a holding room. Constable Gallagher and the respondent then returned to the holding room having left the appellant alone there for a relatively long time.

46. The respondent said that his purpose in returning to the holding room was to obtain formal details from the appellant to facilitate his being charged before the watchhouse sergeant. He said that during this process, the appellant "became upset and aggressive towards police". The appellant then took hold of the respondent's right arm and punched him in the chest with his clenched fist. This caused temporary pain to the respondent. The two constables then subdued the appellant. A further charge of assaulting Constable Gallagher arose from that struggle but the learned Special Magistrate dismissed that charge. I infer that he was not satisfied that any relevant physical contact was deliberate. The appellant was handcuffed and left for a time. Then the constables again returned and obtained the relevant information without incident. The appellant was then charged. The charge was laid, it seems, about 50 minutes after his apprehension.

47. Constable Gallagher supported the respondent's version of the incident in the holding room. He said Constable Carters came to the door of the holding room "when the scuffle started".

48. Constable Carters, however, said that she was walking a few steps behind the respondent and Constable Gallagher as they entered the holding room.

She said,
"...as they entered the holding room I actually stayed in
the doorway. Constable Herold began to ask Mr Saunders his
name. Mr Saunders became aggressive in his attitudes and
his actions. He then grabbed Constable Herold by the arm,
by - with one hand on one arm, and punched him in the chest
region with the free hand".

49. There was then a scuffle between the appellant and the two police officers.

50. She said, also, that the defendant had refused to give his name at the outset of the incident in the holding room. None of the three prosecution witnesses supported the version of events put to them on behalf of the appellant.

51. The appellant gave evidence of what happened in the holding room.

52. He said he saw three male police officers and a female police officer enter or, at least, come to the doorway of the holding room. He was frightened by this and met them at the door - just five to six feet inside the room. He was asked his name and address and gave those details. He declined to say where he worked - he said "What do you need that for?" His fear was that the officers, arriving in force as they did, unarmed and in shirt sleeves, were going to beat him physically.

53. The respondent then said "Take off your glasses". At first, the appellant refused. Then he did so, but as the respondent seized them from his (the appellant's) hand, one of the plastic lenses fell out. The respondent, he said, handed the frames to Constable Carters and ground his foot onto the lens breaking it. He said that then,

"...I rushed forward at him and I was very close to him, and the
other constables grabbed me and Constable Herold had a smile on his
face and he said, "Give in, you black bastard", and I said, "You go
and get fucked", and he said, "Give in you black cunt", and they
were trying to handcuff me..."

54. He said that his intention in rushing forward towards Constable Herold was to avoid being pushed back against the wall. He believed the police were being "arrogant and rude". He was very conscious of the documentation gathered in the Aboriginal deaths in custody enquiry and as a result he "anticipated the worst".

55. Mr Michael Lee gave character evidence supportive of the appellant. However, he conceded he had never seen the appellant consume as much alcohol as the appellant had admitted to drinking on the night in question.

56. His Worship, in relation to the assault charge, accepted that the appellant did rush at the respondent and in the course of doing so, punched him in the chest.

57. In view of the appellant's previous good character, his Worship attributed his conduct to his having had too much to drink.

58. His Worship referred to the appellant's statement that he had rushed at the respondent and seems to accept that as supportive of the prosecution case. He also expressed doubt about whether, if the appellant feared violence, he would have baulked at saying where he worked, having co-operated in giving his name and address.

59. It is not clear whether his Worship rejected the appellant's assertion that he feared the police entering the holding room intended to assault him. It is difficult, however, to understand why the appellant "rushed at" the respondent unless he was either trying to prevent some perceived attack or to remove the officers from the room to terminate the asking of questions. Of course, the appellant's perception was no doubt distorted by alcohol. He was, nevertheless, a man of previous good character. Although his account of events was rejected, it was not suggested that his recollection was dishonest, merely erroneous. It may be, of course, that the appellant's work with the Aboriginal deaths in custody enquiry had raised his level of anxiety so that, affected by alcohol, he perceived threats and imagined racial slurs that did not in fact occur. It was put to the appellant both that he had decided to assault police when they came to take his particulars and that he "over-reacted and perhaps anticipated things that were not actually going to be done". He rejected the first contention but said, as to the second, "I would sooner anticipate the worst". Of course, as he perceived it, "the worst" happened. It seems that the latter view was that which the learned Special Magistrate accepted.

60. It seems that the appellant had a recollection of the major events of the evening in question. He had not suffered lapse of memory. I think the finer details and the nuances of "body language" including his own were, however, affected by his unusually high alcohol consumption.

61. That is, it seems to me, consistent with his Worship's findings.

62. The appellant had submitted to the learned Special Magistrate that he acted in self-defence insofar as he may have struck the respondent (he denied doing so). It was urged before me that, nevertheless, his Worship should have considered, for himself, whether, given the appellant's intoxication, he may have acted in reasonable self-defence, as he perceived it, although the police officers had not in fact had or objectively exhibited an intention to attack him.

63. It is not clear whether that submission was urged on his Worship. It would not have been expected that his Worship would make findings supporting or rejecting that contention unless it was. There is, of course, no criticism of either counsel or the learned Special Magistrate if it was not. A summary hearing does not necessarily call for lengthy reserved reasons covering every possible aspect of the matter. On an appeal, the sort of detailed review I have felt obliged to give to the matter may well become necessary.

64. I find that I cannot reject the hypothesis that in rushing at the respondent and striking him on the chest, as he was found to have done, the appellant believed that the police entering the room were about to assault him. It is clear that he did, in fact, panic. I am satisfied, as was his Worship, that the fear was not justified. However, it is necessary to see whether such a flawed perception as must be so hypothesised, would afford a defence.

65. In Zecevic v DPP (Vic) [1987] HCA 26; (1987) 162 CLR 645 the question of self-defence was considered. That was, of course, a case of homicide. However, the principles applicable to self-defence are equally applicable to all alleged criminal applications of physical force.

66. It was submitted in Zecevic that if the appellant in that case had (or might have) acted in the honest belief that it was necessary to do so in lawful self-defence he should be judged according to the facts as he believed them to be.

67. Mason C.J. rejected that contention. He accepted that the correct formulation of the test for lawful self-defence was stated by Wilson, Dawson and Toohey JJ.

68. That joint judgment emphasised that self-defence, if open on the facts, was to be negatived by the prosecution beyond reasonable doubt. The jury must be so instructed in any case where the possibility is raised, on the evidence, of self-defence being relevant. The question of honest and reasonable mistake of fact is also relevant for the reason that such a mistake, if the assumed facts existed, must also be excluded beyond reasonable doubt by the prosecution.

69. The test for self-defence relies on the answer to what their Honours described as a "quite simple" question.

(661) "It is whether the accused believed upon reasonable grounds
that it was necessary in self-defence to do what he did. If he had
that belief and there were reasonable grounds for it, or if the jury
is left in reasonable doubt about the matter, then he is entitled to
an acquittal. Stated in that form, the question is one of general
application and is not limited to cases of homicide."

70. There is no doubt that, had the police really intended to use physical force against the appellant when they entered the holding room, his response was not disproportionate nor was it unreasonable, even though it could be thought to be unlikely to prevent the feared assault on him. It would be reasonable for him to hope, however, that the noise could attract some officers who would break up the fight and prevent further violence. It goes without saying that the violence the appellant feared would have been unlawful.

71. In R v Honeysett (1987) 10 NSWLR 638, a view that the feared attack had to be such as to be thought likely to cause death or serious bodily injury was rejected. The defence applies, it was said, to any threat of physical violence and to any proportionate response.

72. Was it reasonable for the appellant, in the actual circumstances in which he found himself, to entertain the fear he said he had?

73. A further question, even if the answer to the above is "no", is whether that answer would be different if the fear was (or might have been) based on any reasonably grounded mistake of fact.

74. The appellant was frightened by the number of officers who arrived at the holding room. One would have been enough. Yet on the admission of the police witnesses, three arrived. It is true that Constable Carters says this was fortuitous so far as she was concerned yet it is the picture facing the appellant that is relevant not that which was intended by the police witnesses. It is relevant that the appellant was Aboriginal, he was left alone for a long time before the officers returned. He was not placed under any observation nor were any other steps taken to reassure him that no harm was intended to him. He was simply left alone to imagine the worst. It is also unclear whether he intended to punch the respondent or whether it was, given his intoxication, an unintended and clumsy contact, intended to be a push or shove that occurred.

75. As I must make the decision on this, it seems to me that in rushing at the respondent, the appellant intended avoiding an attack. I am not satisfied that he intended to punch the respondent. In the circumstances, including his intoxication, it was reasonable for him to fear such an attack. The lack of any evidence of an intention on his part to hurt the respondent or any apparent reason to do so supports this conclusion also. It follows that I have a reasonable doubt about his guilt.

76. I uphold his appeal against the finding of guilt for assault. I set aside the penalty imposed and dismiss that information.