Sara Koerner v D J Bretherton [1995] ACTSC 141 (8 December 1995)

SUPREME COURT OF THE ACT

SARA KOERNER v. D J BRETHERTON
No. SCA 41 of 1995
Number of pages - 11
Appeal - Criminal Law - Sentence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Appeal - credibility of witnesses - view of Magistrate at first instance to be preferred - error in omitting consideration of self-defence.

Criminal Law - self-defence - whether self-defence available in resisting lawful force - right to quiet enjoyment of own premises - lawful and reasonable force - applicant's failure to appreciate correct legal position - heightened fear of violence - intent to cause damage to premises.

Sentence - relevance of provocation and emotional disturbance - previous good record.

Crimes Act 1900 (ACT), ss127(5), 556A

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

Saunders v Herold [1991] ACTSC 82; (1991) 105 FLR 1
Thomas v R (1992) 65 A Crim R 269
R v Conlon (1993) 69 A Crim R 92
R v Hawes (1994) 35 NSWLR 294

HEARING

CANBERRA, 23 October 1995
8:12:1995

The Appellant appeared in person

Counsel for the Respondent : Mr A Robertson

Instructing solicitors : Director of Public Prosecutions

ORDER

THE COURT ORDERS THAT:
1. The appeal against the finding of guilt of assault be
upheld.
2. The finding of guilt of assault and the order made in
consequence thereof be set aside accordingly.
3. The appeal against the finding of guilt of malicious damage
be dismissed.
4. The appeal against the penalty imposed in consequence of the
finding of guilt of malicious damage be upheld.
5. The conviction recorded be set aside and in lieu thereof it
is ordered that the information be dismissed pursuant to s556A
of the Crimes Act 1900 (ACT).

DECISION

HIGGINS J The appellant (defendant) was, on 24 April 1995, found guilty in the Magistrates' Court by Magistrate Nicholl of two offences. They were that she,

... on the 30th June 1994, did assault Daniel Collard; and
... did intentionally and without lawful excuse, damage
property, to wit, one plate glass window ... belonging to
Daniel Collard ...

2. His Worship made an order under s556A of the Crimes Act 1900 (ACT) discharging the appellant in respect of the first charge upon her entering into a recognisance in the sum of $750.00 to be of good behaviour for a period of two years. In respect of the second charge, his Worship recorded a conviction but imposed no further penalty.

3. The defendant was self-represented both at the hearing before his Worship and on the hearing of this appeal. She had, due to a lack of understanding on her part, filed notice of appeal only in respect of the assault matter. At her request and without objection, I extended time to enable her to appeal against the conviction for malicious damage and dispensed with such rules as may have prevented the hearing of that appeal forthwith.

4. No further factual material was put before this Court.

5. The appeal is by way of rehearing but I have the disadvantage, compared with his Worship, that I have not seen or heard the witnesses who gave evidence. I am obliged, therefore, to accede to his Worship's view as to the credibility of the witnesses who gave evidence before him unless that view is plainly wrong.

6. Mr Collard, the person named in each charge, gave evidence that he was, on 30 June 1994, a restaurateur. He conducted a business known as "Legends" situated at Palmerston Lane, Manuka.

7. About 3.50pm he was present at the premises. A member of his staff, Dagmar Savage, was also present.

8. The defendant entered the restaurant and a discussion occurred between herself and Mr Collard. At Mr Collard's request, she had done certain artwork for business cards including logo designs. She considered that she was entitled to payment of $331.00. Mr Collard believed, he said, that she was entitled to only $50.00. That was the subject of the discussion.

9. In the course of the discussion, Mr Collard disputed her entitlement to the larger sum. In response, he said, she yelled "obscenities" at him. He asked her to leave the premises. He described her reaction as follows,

She stood up and then she grabbed a glass on a table nearby and
smashed it on the floor.

10. His reaction to that was,

I took her by the arm, you know, to show her the door. At that
stage, you know, she started to scratch me and kick me in the
leg.

11. Because he had a pre-existing leg injury, he attempted to prevent her kicking his leg. He said,

I just took her by the back of the neck on the hair, by the
hair, to push her down so she would be unbalanced if she started
to kick and sure enough she would fall ... then I just opened -
managed to open the door and I kicked her out ... I pushed her
outside ... and closed the door.

12. He explained that the term "kicked her out" was not to be taken literally. It was intended to mean that he forcefully ejected her. He suffered a scratch to the left side of his face in the course of the struggle.

13. After the defendant was outside, he said, he saw her turn around and kick the window. As a result a hole formed and the glass cracked. She then left the scene. He complained to police of her conduct.

14. Mr Collard later had the glass replaced at a total cost of $1,540.30. That cost was met by Mr Collard's insurer.

15. In cross-examination, the defendant suggested to Mr Collard that he had unjustifiably refused to pay for her design services and had assaulted her. She also alleged that a male chef was present and had witnessed the occurrence.

16. Mr Collard denied that there was any member of his staff who was a male. He said there was no other person present besides Ms Savage. He asserted that he did not owe the defendant any more than $50.00. He conceded, however, that he had not paid even that sum.

17. Ms Savage gave evidence which confirmed, in general terms, Mr Collard's account of his argument with the defendant.

18. Her account was a little disjointed but, according to her,

... at one point in time she (the defendant) sat down and she
said she was refusing to leave until she got the money ...
Daniel said "I'm going to get the police to have you removed"
and then I think he must have pulled her arm or something like
that, because - just like, full on, she started scratching at
his face ...
... Daniel sort of grabbed her and tried to push her away
because she started kicking again, and then at one point of time
she had a glass, and she threw it across the restaurant ... he
was trying to get her towards the door.

19. She did not see Mr Collard strike at the defendant. She did see him push the defendant towards the door and, whilst holding her, open the door, push her out and then close it behind her, shutting her out.

20. Ms Savage then described what happened after the defendant was ejected as follows,

As soon as she was pushed out the door she turned around, and
she was swearing quite loudly and a lot. She just turned round,
and straight away with her foot kicked at the window and it
cracked instantly.

21. The defendant asked no questions of Ms Savage.

22. After the incident at Legends, the defendant participated in a recorded conversation with police. In that recorded interview, the defendant denied that she "assaulted" Daniel Collard. She said that he "assaulted" her.

23. She agreed that she had asked Mr Collard for $331.00. He had refused. She got upset and smashed a glass on the floor. Then, she said, he "attacked" her.

24. In answer to a question as to what had happened she said,

Well um I smashed a glass and then I knew it was time to get out
of the shop and because he came at me but it was too late and he
got me then he started punching me, he had me (my arm?) behind
my back and he, he had his hands kind of at the back of my neck
and I was trying to get away from him and then he was pushing me
down on the ground and then um some how the front door or the
some glass got smashed the window panel and then I just ran and
he said I'm gonna call the police I'm gonna call the police, and
I said you do that you, you, you're a dishonest man you're a bad
business man.

25. She agreed that before this she had refused to leave till she was paid and that Mr Collard may have threatened to call the police to have her removed. She could not clearly describe what it was she referred to as "punching".

26. As to the injury inflicted on Mr Collard the following question and answer is recorded,

Q60 Ah Mr Collard stated that ah, as he was trying to get
you out of the premises, you've clawed at his face, scratching
him on the left side of the face what do you have to say about
that? - - - I was getting out of the place and I was in self-defence
trying to get away from him cause he was just grabbing
me and wanting to punch me and grab my hair and everything I
was, I was trying to kick him in the nuts, I was trying to get
away from the guy cause I just wanted him to let go of me cause
as soon as he grabbed me I knew that he was gonna assault me and
he, as soon as he grabbed me he started assaulting me and I
wanted to get away so I was, I was trying to get away from the
guy.

27. She explained the broken window as having occurred in the course of the struggle. Police records confirmed that she had, at about 4.26pm on the day of the incident, rung to complain of Mr Collard assaulting her.

28. The defendant gave sworn evidence in support of her version of events. She conceded that during the incident she was hysterical and upset and "in a state of shock". In explanation of this reaction she said that she had previously been through a lot of violence. She did not elaborate on that.

29. His Worship noted that the parties were agreed on the general sequence of events. Where there was conflict, he preferred the evidence of Mr Collard. He explained his reasons for doing so. Those reasons seem cogent and persuasive. It was clearly open to his Worship to have assessed the credibility of the witnesses as he did.

30. His Worship found that Mr Collard had used lawful and reasonable force to eject the defendant. Although he did not expressly say so, his Worship must also have found that the window was broken after the defendant was ejected and not during the struggle to eject her as she claimed. That conclusion follows inevitably from his Worship's preference for Mr Collard's version of events where there was conflict between his evidence and that of the defendant. His Worship also found that the defendant had lost her temper when confronted by Mr Collard's refusal to pay her. That was, to my mind, also a fair conclusion well open to his Worship.

31. The finding that Mr Collard had legal justification to use reasonable force to eject the defendant following her action in throwing a glass on the floor, was also one with which I would respectfully agree.

32. However, that does not necessarily imply that the defendant was guilty of assault. It merely implies that Mr Collard was not guilty of assaulting the defendant when he laid hands on her and forcibly ejected her. Those actions of Mr Collard would have constituted an assault on the defendant but for the objective circumstances justifying his violence towards her. He was using reasonable force in defence of his right to quiet enjoyment of his premises.

33. The issue before his Worship, however, was not whether Mr Collard had assaulted the defendant but whether the defendant was guilty of having assaulted Mr Collard.

34. The defendant agreed that she had resisted Mr Collard's attempts to eject her. She conceded that in doing so she applied force to Mr Collard. She asserted that she did so in self-defence. She plainly genuinely believed that she was entitled to be paid. On that issue, his Worship did not reject her evidence. She did not apply force to Mr Collard until he did so to her. The issue of self-defence was clearly raised by the evidence. The question, therefore, was whether the prosecution had proved, beyond reasonable doubt, that the defendant had not acted in reasonable self-defence.

35. The test for determining whether self-defence, once raised on the evidence, is to be excluded, is to be decided in accordance with Zecevic v DPP (Vic) [1987] HCA 26; (1987) 162 CLR 645. The majority of the High Court in that case held that an accused was entitled to be acquitted unless the prosecution had proved beyond reasonable doubt that he or she did not believe upon reasonable grounds that it was necessary in self-defence to do what he or she did. The question raised on this appeal is whether a plea of self-defence can be sustained even if the accused is offering resistance to the use of force that is, in fact, lawful.

36. Wilson, Dawson and Toohey JJ made it clear that there were to be no artificial qualifications on the statement of principle they proposed. There was to be no artificial rule requiring retreat before resort to force. Nor was self-defence to be confined to resisting an unlawful attack. Thus, resisting an attack by an insane person would be lawful even though the acts of that person could not be regarded as unlawful. Of course, an attack that is "not unlawful" is not necessarily to be equated with an attack that is "lawful". Their Honours proceeded to comment, at 663-4,

It is, however, only in an unusual situation that an attack
which is not unlawful will provide reasonable grounds for resort
to violence in self-defence. The whole of the surrounding
circumstances are to be taken into account and where an accused
person has created the situation in which force might lawfully
be applied to apprehend him or cause him to desist - where, eg,
he is engaged in criminal behaviour of a violent kind - then the
only reasonable view of his resistance to that force will be
that he is acting, not in self-defence, but as an aggressor in
pursuit of his original design.

37. That covers a situation where an accused having, for example, violently and unlawfully assaulted a person who, in fear for his or her life, uses lethal force against the accused. A claim by that accused to be entitled to use lethal force to repel that response would not be reasonable.

38. That statement of principle does not, however, address a situation where the force applied, though in fact lawful, is mistakenly believed by the defendant to be unlawful.

39. Their Honours make the point that, even if the use of force to resist an attack would be excusable, it is unlawful to use excessive or disproportionate force. Thus it would be unlawful to use lethal force against a trespasser unless it was believed, on reasonable grounds, that the trespasser intended to use force that was likely to cause death or serious injury.

40. In Zecevic (supra), the facts seemed to indicate that the victim did not intend and was not attempting to use unlawful force against the accused. However, the accused believed (or claimed to believe) that he was. There were some objective facts which could have rendered such a belief reasonable. The question which was necessarily unresolved was whether, had the deceased prevailed and killed the accused, assuming the latter to have been acting in self-defence, the deceased could also have validly claimed to have been acting in self-defence.

41. Brennan J also adverted to the question of self-defence against the use of force which was objectively lawful. His Honour took the view that self-defence was available only in response to unlawful force. "Unlawful", in his Honour's view, at 668, described force,

... which is not authorized, justified or excused by law
whatever be the state of mind of the person who applies it ...

42. However, that dicta does not expressly address the situation where, though objectively "excused by law", the use of force upon the accused is believed by that person to be unjustified. However, it clearly has apparent application thereto. That consequence was noted by Brennan J at 669. His Honour said,

The test of belief on reasonable grounds of the necessity to do
what is done in self-defence, if it be adopted as an exhaustive
test, would extend the defence to cases where the accused is
defending himself against lawful force. The test would not
exclude cases where the accused does nothing to court the lawful
application of force to him (as in the case of the lawful arrest
of an innocent man) or where he does something unlawful but not
necessarily violent which causes the lawful application of force
to him (as in the case of a prisoner who tries to escape from
lawful custody) or where lawful force is threatened or applied
to him by the victim in protection of a third party (as in the
case of an attack by the accused on the third party). In any of
these cases, the person who threatens to apply or applies force
to the accused initiates the violence against which the accused
defends himself and the accused might have reasonable grounds to
believe that, if he does not do what is necessary to defend
himself, that force will be applied or will continue to be
applied to him. Unless a criterion of defence against unlawful
force is adopted, the defence of self-defence may be extended to
cases of these kinds.

43. In consequence, his Honour considered it necessary to propose a qualification upon the test proposed by the majority.

44. Of course, in many, if not all, of the examples referred to by Brennan J, the accused would have had no reasonable grounds for belief that the application of force to her or to him was unlawful.

45. However, what if the innocent man his Honour referred to genuinely believes the arrest warrant to be invalid? What if the person seeking to escape lawful custody believes that he or she was being unlawfully detained or seized? What if a person using "lawful" force to protect a third party from an apparently unlawful attack is, in fact, protecting the aggressor? Does the fact that the intervener is using lawful force prevent the real victim from acting to protect himself or herself?

46. It seems to me that the test for self-defence must take account of the belief of the accused as to the lawfulness of the force against which the accused believes that she or he is entitled to resist as well as the objective justification for it. Some qualification such as that suggested by Brennan J, although not adopted by the majority, does, in my respectful opinion, seem necessary. However, the qualification his Honour suggested seems also to require some modification to avoid injustice. That injustice seems to me to be avoided if it be accepted that a person is entitled to act in self-defence if he or she believes on reasonable grounds that the force used against him or her is unlawful, as Brennan J defined that term, even if it be in fact lawful.

47. Deane J was in dissent on one matter. His Honour considered that if the defence of self-defence failed in the case of homicide, because of lack of reasonable grounds for the perception that self-defence was warranted or because of lack of reasonable grounds for believing that the force used was not excessive, the verdict should be manslaughter rather than murder.

48. That reservation is not relevant in the context of an assault charge.

49. His Honour supported the view expressed by Brennan J that self-defence should be available only to resist "unlawful" violence. His Honour, at 681, considered that aspect of the test would be accommodated by asking the jury whether the Crown had negatived the hypothesis that the accused was,

... acting in reasonable self-defence and that he had been so
acting if he had reasonably believed that what he was doing was
reasonable and necessary in his own defence against an
unjustified attack ...

50. To avoid technical argument or explanation, his Honour preferred "unjustified" to "unlawful" as qualifying the kind of attack to which self-defence was open.

51. The formulation adopted by Deane J supports the qualification which seems to me to be necessary the more appropriately to express the application of the Zecevic test to a situation where there is resistance to force which, although lawful, is reasonably believed by the accused person to be unjustified.

52. In Saunders v Herold [1991] ACTSC 82; (1991) 105 FLR 1, I held that a belief reasonably, but mistakenly entertained by the defendant that a police officer was about to assault him justified the defendant pushing the officer away and, in doing so, striking his chest with his hand.

53. The issue was more directly addressed in Thomas v R (1992) 65 A Crim R 269. The appellant was involved in stealing property. The owner attacked him with a view to preventing the theft and arresting the appellant. The appellant defended himself against what he perceived as excessive force in the circumstances. Hunt CJ at CL held that self-defence was not confined to the case of a person resisting an attack which was in fact unlawful. The fact that the force used by the owner to arrest the appellant had not been excessive, did not mean, as a matter of law, that the appellant could not have been acting in self-defence according to the Zecevic test.

54. His Honour said at 273,

... the impression conveyed by the directions (to the jury) ...
was that no issue of self-defence could arise if the actions of
(the owner) were lawful, ... A direction which conveyed such an
impression was wrong ... the judge ... nowhere discussed the
clear factual issue ... that the appellant could reasonably have
believed that he was being attacked rather than arrested.

Grove and James JJ agreed.

55. In a subsequent case, R v Conlon (1993) 69 A Crim R 92, the accused was charged with murder. He disturbed persons stealing his marijuana plants. They assaulted him. Fearing further violence he shot, clubbed and stabbed them. He was affected by alcohol and drugs. Hunt CJ at CL acquitted the accused on a charge of murder of one of them on the basis that the Crown had not excluded self-defence in relation to that particular matter.

56. In doing so, his Honour rejected the view that any effect of drugs in reducing the accused's appreciation either of the threat he was under or of the reasonableness of his response was irrelevant. It was, in his Honour's opinion, the actual perception of the accused, whether drug-affected or not, that needed to be considered. Further, the fact that the accused responded in a state of anger did not necessarily exclude an apprehension on his part that he might be unjustifiably attacked. It was possible, on the facts as he perceived them to be, that the accused had acted as he did out of a reasonable belief that it was necessary so to act to avoid death or serious injury. He had no such grounds in relation to the second victim who was lying helpless when the accused killed him.

57. In R v Hawes (1994) 35 NSWLR 294 the accused was charged with malicious wounding. The accused claimed that the victim had attacked him with a knife. In a subsequent struggle, the victim was stabbed. He claimed the accused had the knife and that he had not. Whilst rejecting a complaint about the summing up, Hunt CJ at CL (Simpson and Bruce JJ agreeing) at 306 emphasised that the question posed by Zecevic is as to,

... the belief of the accused, based upon the circumstances as
he perceived them to be, which has to be reasonable, and not the
belief of the hypothetical person in his position.

58. I respectfully agree with the opinions expressed by Hunt CJ at CL in the preceding three cases.

59. Accordingly, whilst his Worship was entitled to accept Mr Collard's version of events, that version was not inconsistent with the existence of a belief on the part of the defendant that she was the victim of an unjustified attack. Objectively, of course, Mr Collard was acting lawfully in attempting to eject her. The failure of the defendant to appreciate that Mr Collard was within his rights in ejecting her by force after she had refused to depart voluntarily was based on her belief that she was entitled to remain and insist on payment. She did not understand that her action in smashing the glass added to the entitlement of Mr Collard to eject her.

60. According to Ms Savage, Mr Collard had told the defendant that he would call the police to have her removed. She agreed this had been said. This may well have added to the belief on the part of the defendant that Mr Collard was not entitled to use force to eject her. It follows that it could not be concluded that her failure to appreciate the correct legal position was unreasonable.

61. Granted that his Worship did not consider the issue of self-defence at all, it is necessary to consider whether it can be regarded as excluded beyond reasonable doubt, accepting the evidence of Mr Collard and of Ms Savage where inconsistent with that of the defendant.

62. I am not able to exclude, beyond reasonable doubt, the hypothesis that the defendant believed on reasonable grounds, albeit mistakenly, that she was entitled to use reasonable force to defend herself against the force being used by Mr Collard to eject her. Additionally, the hypothesis that she genuinely feared that more force might be used against her than was necessary to cause her to leave the premises could not be excluded beyond reasonable doubt. Indeed, it is supported by Mr Collard's anxiety to prevent his injured leg being kicked. The defendant did not know of that fact. I am not able to conclude that the defendant's perception was unreasonable from her point of view. The fact that she was angry and vented that anger on a glass is not inconsistent with a conclusion that she was acting in self-defence.

63. As the prosecution case has not excluded self-defence, the finding of guilt in respect of the assault charge cannot stand. I set aside the finding of guilt and the order made in consequence thereof.

64. The malicious damage charge stands in a different position. If the damage occurred in the course of the struggle between Mr Collard and the defendant then it is possible that it was not intentional. It would not then matter whether the damage was a direct consequence of an act of the defendant or of Mr Collard.

65. On this matter there was a clear conflict of evidence.

66. If, as Mr Collard deposed, the defendant had kicked at the window following her ejection from Legends, the inference seems inescapable that she intended, as defined in s127(5) of the Crimes Act 1900 (ACT), to cause damage to the window. It may be assumed that she, at least, believed her actions were likely to result in some damage even if less than that which actually occurred. Whether or not she genuinely forgot that she had kicked the window after she left the premises or was dissembling as to the truth of the matter does not need to be decided. Indeed, without seeing her give her evidence it would be inappropriate for me to express an opinion as to that question. It is quite possible that her state of anger, frustration and, possibly, fear caused her to have failed to recollect that action on her part. She did say that she had a heightened fear of violence which could have led to such a state.

67. It seems to me, therefore, that the finding and verdict in respect of the malicious damage charge must stand.

68. I dismiss the appeal against the finding of guilt in respect of that charge.

69. I now consider the question of penalty. His Worship recorded a conviction. He recorded no conviction on the assault matter because of the "provocation" offered by Mr Collard. It seems to me that a similar consideration must apply in relation to the damage to the window. I would uphold the appeal as to penalty. There are extenuating circumstances, including the emotional disturbance arising from the defendant's sensitivity to violence which she mentioned in her submissions to me. I also take account of her previous good record and character. Having regard to those matters, in all the circumstances of the case, the information will be dismissed pursuant to s556A of the Crimes Act 1900 (ACT).