Michael John Ninness v Ian Walker [1998] ACTSC 151 (17 February 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MILES CJ

  

  

   CRIMINAL LAW - self-defence
- accused intoxicated at time of assault on
victim - whether Magistrate allowed for intoxication in deciding issue of
reasonableness
of accused's belief - extent to which intoxication may be taken
into account on that issue.

  

   CRIMINAL LAW - duty of prosecution
to call all relevant evidence - whether
miscarriage of justice in failing to call some bystanders - not known what
evidence they
could give.

  

   APPEAL - several grounds of appeal based on isolated passages selected from
Magistrate's reasons for judgment
- need for reasons to be examined as a whole
- no error shown.

  

   APPEAL - point raised whether Magistrate's finding of assault
proved was
unsafe and unsatisfactory - whether that is an appropriate ground in appeal
from Magistrate.

  

   Crimes Act 1900

  

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

   R v. Conlon (1993) 69 A Crim R 92

   McCullough [1982] Tas R 43

   Howard's Criminal Law (5th ed, 1990)
at p.156

   R v. Apostilides [1984] HCA 38;  (1984) 154 CLR 563

  

  

   CANBERRA, 6 February 1998 (hearing), 19 February 1998 (decision)

   #DATE 17:02:1998

  

   Appearances

   Counsel for the appellant: C. Everson

   Solicitors for the appellant: Pappas, J. - Attorney

  

   Counsel for the respondent:
K. Hempenstall

   Solicitors for the respondent: ACT Director of Public Prosecutions

  

  

  

   Order: The appeal be dismissed
and the orders of the Magistrate be
confirmed.

  

  

   MILES CJ

   1. The appellant was charged with assaulting a man called
Grant Schultz on
16 February 1996. The case came before a Magistrate on 17 February 1997. The
offence was found proved but the appellant
was discharged under s.556A of the
Crimes Act 1900 , without the recording of a conviction, upon the appellant
entering into a recognizance. He appeals now against the finding of guilt.

  

   2. The charge arose out of an incident late in the early hours of the
morning in a bar called Moosehead's Pub in Civic. There
were a number of
off-duty members of the Australian Federal Police there. The appellant is the
son of a former senior member of the
Australian Federal Police. He was
affected by alcohol. He claimed that one of the police officers, a man called
Jaggers, began the
incident by making insulting remarks to him. The Magistrate
did not find that fact proved. However, the Magistrate did find that
the
appellant brooded over the perceived insult and persisted in seeking an
apology. The appellant claimed in his evidence that whilst
he and Jaggers were
remonstrating with each other, two more of the Australian Federal Police group
approached. One of them was Grant
Schultz. The appellant's evidence continued:

  

  

   "As soon as Schultz approached me, he pushed me in the chest. He said,
"Fuck
off. You are an idiot." I said, "I'm not interested in talking to you."
I turned to Jaggers, and, as I did so, I got a big shove
in the chest. I was
scared. I struck Schultz with my right fist."

   3. The Magistrate found this evidence to be corroborated by
that of the
manager of the bar. However, the Magistrate rejected the further evidence of
the appellant, uncorroborated by that of
the manager, that Grant Schultz
pushed him or hit him several times and that the incident continued out into
the street.

  

  
4. The Magistrate expressly noted that there were inconsistencies in the
evidence of the appellant as to the actions of Schultz and
as to the
appellant's own state of mind immediately before he struck Schultz. The
Magistrate also found as a reasonable possibility
that Schultz pushed the
appellant on the one occasion in an aggressive manner. The Magistrate then
described the issues to be determined
as follows:

  

  

   "The question then becomes whether, in responding as he did, the defendant
was guilty of an assault, or was
acting by way of self defence. This
translates into whether he did what he did in genuine self-defence, or whether
it was done in
a fit of pique, in retaliation. The onus is on the prosecution
of proving the latter beyond reasonable doubt."

   5. Before answering
the question the Magistrate went on to further examine
the evidence and make further findings of fact. He concluded as follows:

  

  

   "Leaving aside the defendant's conflicting versions, there is not a hint of
any other evidence that Schultz was about
to belt him, or push him over, or
kick the shit out of him. If in fact that was the state of mind of the
defendant, it was without
the slightest factual foundation, and was not a
belief that was reasonably held. At most, we have a person who the defendant
knew
to be an off duty policeman pushing him, intoxicated, in the direction of
the exit door of licensed premises. Schultz may well have
been under an
obligation to perform under section 58 of the Liquor Act: at the least, the
defendant was quarrelsome, and obviously went back into the bar to pick a
fight with Jaggers. His denials of this
in cross-examination, and his
assertion that he only went back in to apologise are unconvincing. I am
satisfied beyond reasonable
doubt that the defendant struck Schultz when he
lost his temper, because Schultz intervened when he was trying to have it out
with
Jaggers. I am satisfied that, whatever his motives, it was not out of
fear nor was it in self-defence."

   6. Mr. Everson, for the
appellant, properly concedes that, the Magistrate
having had the advantage of seeing the appellant and the other witnesses give
their
evidence, was in a superior position to this Court with regard to the
findings of primary fact. This Court should therefore not interfere
with such
findings. Rather, Mr. Everson submits that an examination of his Worship's
reasons reveals errors of law and errors in
relation to the inferences to be
drawn from the primary facts.

  

   7. Clearly, as was conceded on behalf of the appellant, it
was open to the
Magistrate to find as a fact that the appellant intended to pick a fight with
Jaggers (which I consider to be a primary
fact) and that the appellant struck
Schultz when he lost his temper at Schultz' intervention in the incident
between the appellant
and Jaggers (also a primary fact). In the light of those
primary facts, the appellant faces a considerable hurdle in showing error
on
the part of the Magistrate in concluding that the prosecution had successfully
excluded self-defence as justification for the
appellant's conduct.

  

   8. It was submitted that the Magistrate applied an objective test to the
mind of the appellant at the
time of striking the other man, overlooking the
need to examine the state of the mind of the appellant and not that of a
reasonable
person in the position of the appellant. Reliance was placed on the
leading authority in Australia on the subject of self-defence,
the decision of
the High Court in Zecevic v. Director of Public Prosecutions (Victoria) [1987] HCA 26;  (1987)
162 CLR 645, particularly at 658 and 662-663. At the latter reference, Wilson,
Dawson and Toohey JJ. said in their joint
judgment:

  

  

   "No doubt it will often also be desirable to remind the jury that in the
context of self-defence it should
approach its task in a practical manner and
without undue nicety, giving proper weight to the predicament of the accused
which may
have afforded little, if any, opportunity for calm deliberation or
detached reflection."

   9. Mr. Everson for the appellant also
submitted that the Court should adopt
the approach of Hunt CJ at CL in R v. Conlon (1993) 69 A Crim R 92.

  

   10. Whilst it seems
to me, with respect, that it is correct to say as Hunt
CJ did, that it is the mind of the accused in the light of the circumstances
and not that of some hypothetical person in the position of the accused that
is decisive, that proposition is not an end of the matter
for the purposes of
the present case. It is still essential that the belief of the accused be held
on reasonable grounds ( Zecevic
at 661). The tribunal of fact will decide that
issue bearing in mind that the onus lies on the prosecution, and for that
reason will
take a wide view of what conduct might be reasonable in the
circumstances in which the accused person believes himself or herself
to be.
In my view, however, that does not mean if that there is a bare possibility
that the accused's belief might have been reasonable,
then the accused is
entitled to an acquittal. It may be a matter of semantic niceness to say that
there is a difference between a
finding that there is a reasonable possibility
that the accused's belief was justified and a finding that the accused's
belief was
reasonable. But unless there is a finding of one or the other, or
the fact finder is in doubt on the issue, the accused cannot succeed
on the
issue of self-defence. Either approach requires consideration of an objective
standard of reasonableness by the fact-finder,
to be applied after taking into
account the "predicament of the accused".

  

   11. It was submitted by Mr. Everson that the Magistrate
failed to take into
account the matter of the accused's own intoxication. Reliance was again
placed on the decision of Hunt CJ in
Conlon . That was a case of a trial
without a jury. The accused faced two charges of murder. His Honour considered
that the intoxication
of the accused was a matter to be taken into
consideration on the issue of the reasonableness of his response to the danger
he perceived
as well as on the state of his mind as to the gravity of that
danger. In his judgment at 96 his Honour said as to the law:

  


 

   "The Crown, as I have said, must establish either that the accused did not
believe that it was necessary in self-defence to
do the act causing death or
that there were no reasonable grounds for that belief. .... The Crown does of
course have to eliminate
any reasonable possibility that the accused's
perception was reduced by reason of his intoxication. ..."

   12. I interpolate here
that the last sentence should be read in the context
of his Honour's judgment and, in my respectful opinion, does not correctly
represent
any general proposition of law.

  

   13. On p.97 his Honour continued on the facts:

  

  

   "I am not satisfied that the Crown
has eliminated the reasonable
possibility that the accused's perception was so reduced when he first came to
fire the rifle, ...
I do not exclude the likelihood that anger played some
small part in reaction of the accused, but anger at finding oneself in a
particular
situation of being attacked is not in every case inconsistent with
fear for one's safety in that attack, as the Crown accepted."

   14. His Honour went on to deal with what was a related but different point.
The New South Wales Crown had apparently submitted
that the test for deciding
whether there were reasonable grounds for the accused's belief was a
completely objective one. His Honour
rejected that submission. To the extent
indicated above, I agree with the view underlying that part of his Honour's
decision. His
Honour returned to matters of law at 99:

  

  

   "That, however, does not resolve the problem which arises in the present
case.
Although the mixed objective and subjective nature of the assessment as
to whether the accused's belief was based on reasonable grounds
means that
account must be taken of those personal characteristics of this particular
accused which might affect his appreciation
of the gravity of the threat which
he faced and as to the reasonableness of his response to that danger, the
Crown has argued (as
an alternative to the argument which I have rejected)
that voluntarily induced intoxication through the consumption of alcohol or
drugs should not be taken into account as such a personal characteristic
because (it is said) to do so would entitle those whose
perceptions are
mistaken by reason only of such intoxication to kill with impunity. No
judgment of an Australian court (reported
or unreported) given since Zecevic
v. DPP has been found which insists that such a personal characteristic should
be excluded from
this assessment. The issue appears, surprisingly, not to have
been discussed. It has been discussed in England, although the law
relating to
self-defence there has developed somewhat differently to the way in which it
has now been stated by the High Court in
Zecevic v. DPP ."

   15. His Honour rejected the submission that the decision of the Court of
Appeal of Tasmania in McCullough [1982]
Tas R 43 reflected the common law. In
that case, applying s.46(2) of the Tasmanian Criminal Code, the Court said at
53:

  

  

   "... in our view it would be incongruous and wrong to contemplate the
proposition that a person's
exercise of judgment might be unreasonable if he
was sober, but reasonable because he was drunk."

   16. With respect to his Honour,
it appears to me that there is no relevant
difference between the Tasmanian Criminal Code and the common law on the issue
of reasonableness in self-defence. The editor of Howard's Criminal Law (5th
ed, 1990) at 156 appears
to be of the same view. The reason may be shortly
stated, if not repeated. The intoxicated state of the accused's mind is a
factor
to be taken into account in deciding whether or not the prosecution has
excluded the reasonable possibility that the accused believed
that what he did
was necessary for his self-defence and whether the accused's belief was based
on reasonable grounds. The relationship
between reasonableness and the belief
will depend upon the state of belief, the degree of intoxication and the
objective circumstances.
It does no violence to the language or to common
human experience to say that a person intoxicated may act unreasonably or that
a
person's belief, although induced by intoxication, may be unreasonable. To
test the reasonableness of a belief, it is necessary to
determine the
objective circumstances as well as the circumstances as the person perceived
them, whether intoxicated or not. In my
view, it cannot be said that if it is
established that a belief is genuinely held in a state of intoxication, then
it follows that
the belief is reasonable. Nor can it be said that the greater
the intoxication the more likely that a belief (unreasonable in a sober
person) is reasonable.

  

   17. Where the onus of proof requires that it be positively established that
the person's belief lacked
reasonable grounds, it is not sufficient to say
that objective considerations are excluded by an intoxicated state of mind. I
think
that the word "incongruous" used by the Tasmanian Court of Criminal
Appeal is well chosen. It would be incongruous for a Court to
decide that the
objective circumstances were such that the accused's belief was unreasonable,
but to determine further that, having
regard to the accused's misconception of
those facts induced by intoxication, that the belief was reasonable.

  

   18. In this
respect the Magistrate has not been shown to have applied the
wrong test or failed to have taken the matter of the accused's intoxication
into account. The Magistrate applied the common law as laid down in Zecevic
and elsewhere.

  

   19. There were other grounds of
appeal. It was submitted that the
Magistrate had fallen into the error of considering that an act done in anger
could not be done
in self-defence, that the Magistrate confused retaliation
with "pique" and that the Magistrate wrongly thought that it was necessary
for
the prosecution to show that the blow was struck in "a fit of pique, in
retaliation". However, a reading of the whole of the
Magistrate's judgment
does not establish any such errors. It must be remembered that a judgment is
not to be minutely construed as
if it were the Constitution or even an act of
Parliament. A judgment is not to be tested like an examination paper,
achieving or falling short of a pass mark,
or to be assessed like a paper in a
learned journal, subject to peer review by scholars. Above all, an appellant
is not entitled
to subject a judgment to a technique like that of a media
interviewer, by searching for any internal inconsistency or an inconsistency
with something said on another occasion or elsewhere, or excising isolated
passages which might sound wrong taken out of context.
There is no question
that the Magistrate in the present case recognized, articulated, and applied
the proper principles of law to
the facts which were open to him to find and
that those facts were within the province of the Magistrate and not that of an
appellate
court.

  

   20. The final ground of appeal is that the prosecution failed in its duty
to put all relevant evidence before the
Court. Since 1984 it is part of the
common law of Australia that the absence of testimony of a witness who might
be called by the
prosecution in a criminal trial may lead to a miscarriage of
justice, if in the absence of such evidence the jury's verdict is unsafe
and
unsatisfactory: R v. Apostilides [1984] HCA 38;  (1984) 154 CLR 563. (The headnote to the
report may be incomplete: see 577-578 of the joint judgment of the High
Court.)

  


  21. It was submitted that there were a number of off-duty police present at
the incident who could be expected to give relevant
evidence. The submission
is, in my view, based on speculation not expectation. It is notorious that the
faculties of observation
and recollection of people present at brawls and
similar occurrences are lacking, at least when it comes to giving sworn
evidence.
Some witnesses to the incident were called. Jaggers, who was in the
position of a key witness, was called by the prosecution and
cross-examined by
defence counsel. So were the doorman, and an off duty policewoman as well as
the complainant. The appellant gave
evidence and called the manager and
another employee. In the absence of knowing what all the other persons would
have said if called,
there can be no conclusion that the absence of their
testimony renders the Magistrate's conclusion unsafe and unsatisfactory.
Further,
the nature of the appeal to this Court from a decision of a
Magistrate is not identical with that of an appeal from a jury verdict
to a
court of criminal appeal. The "duty" of the prosecution to call all relevant
evidence in a summary hearing of a charge of common
assault may not be as
onerous as in a trial on indictment of a serious criminal offence. Unless and
until there is binding authority
to the contrary, I do not think it
appropriate to decide appeals from summary convictions as if they were appeals
from jury verdicts.
It may be observed that so far as the appeal book shows,
no application was made to the Magistrate to request the prosecution to
call
the witnesses whose absence is now the subject of complaint.

  

   22. The appeal will be dismissed and the orders of the
Magistrate
confirmed. Unless the parties wish to be heard I will make no order as to
costs.