Tapp v Thamer [2002] ACTSC 86 (28 August 2002)

Last Updated: 29 August 2002

MATTHEW TAPP v CONSTABLE PETER HANS THAMER

[2002] ACTSC 86 (28 August 2002)

CATCHWORDS

APPEAL from Magistrate - finding that appellant had no reasonable ground for believing it was necessary to punch victim in the nose - re-hearing - advantage of Magistrate.

Crimes Act 1900, s 402

State Rail Authority (NSW) v Earthline Constructions Pty Limited (In Liq) (1999) 73 ALJR 306; [1999] HCA 3

Sikorski v Gritsch [2002] ACTSC 55

Branir Pty Limited v Owston Nominees (No 2) Pty Limited [2001] FCA 1833

Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157

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

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 29 of 2002

Judge: Miles CJ

Supreme Court of the ACT

Date: 29 August 2002

IN THE SUPREME COURT OF THE )

) No. SCA 29 of 2002

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: MATTHEW TAPP

Appellant

AND: CONSTABLE PETER HANS THAMER

Respondent

ORDER

Judge: Miles CJ

Date: 29 August 2002

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed and the finding of the Magistrate confirmed.

1. This is an appeal against a finding in the Magistrates Court that an offence of assault had been proved against the appellant, and, as usual, raises the initial question of the nature of the appeal and the extent to which, where the appeal is against findings of fact, this Court should have regard to the findings in the court below.

2. The authorities on the subject become more numerous with each volume of published reports and expand exponentially with the placing on the internet of virtually all decisions of superior courts in this and other countries.

3. Perhaps the most authoritative decision to date on the subject is the decision of the High Court in State Rail Authority (NSW) v Earthline Constructions Pty Limited (In Liq) (1999) 73 ALJR 306; [1999] HCA 3. I quoted at length from the judgments in that case in Sikorski v Gritsch [2002] ACTSC 55 and my own words have been quoted back at me at length as if they were the last word on the subject, which in a sense I thought they were at the time. However, I overlooked Branir Pty Limited v Owston Nominees (No 2) Pty Limited [2001] FCA 1833, a decision of the Full Court of the Federal Court of Australia in which the appointment of Allsop J enabled his Honour to make an exhaustive review of the authorities and to observe by way of conclusion as follows:

"[28] ...First, the appeal court must make up its own mind on the facts. Secondly, that task can only be done in the light of, and taking into account and weighing, the judgment appealed from. In this process, the advantages of the trial judge may reside in the credibility of witnesses, in which case departure is only justified in circumstances described in [various authorities]. The advantages of the trial judge may be more subtle and imprecise, yet real, not giving rise to a protection of the nature accorded credibility findings, but, nevertheless, being highly relevant to the assessment of the weight to be accorded the views of the trial judge. Thirdly, while the appeal court has a duty to make up its own mind, it does not deal with the case as if trying it at first instance. Rather, in its examination of the material, it accords proper weight to the trial judge's views. Fourthly, in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.

[29] The degree of tolerance for any such divergence in any particular case will often be a product of the perceived advantage enjoyed by the trial judge. Sometimes, where matters of impression and judgment are concerned, giving `full weight' or `particular weight' to the views of the trial judge might be seen to shade into a degree of tolerance of divergence of views .... In such cases the personal impression or conception of the trial judge may be one not fully able to be expressed or reasoned .... However, as Hill J said ... `giving full weight' to the view appealed from should not be taken too far. The appeal court must come to the view that the trial judge was wrong in order to interfere. Even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate that conclusion.

[30] From these principles of how the appeal court should undertake its task, the following can be said about the approach of those conducting an appeal. The proper approach is not to ask the court to survey all the evidence, directed by the otherwise unassailable findings on credit, and to ask it to arrive at its own conclusions, without `essaying the necessary task of positively demonstrating that the trial judge was wrong': .... It is not appropriate to treat the appeal as though it were a new trial on the evidence and constrained merely by the unassailable factual findings. Error must be demonstrated ... The views and conclusions of the trial judge ultimately have to be shown to be wrong. They should not be laid to one side and a simple re-argument of the case take place."

4. Drummond and Mansfield JJ agreed with these observations. So did the Full Court in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 in which Branson J said at [4] and [5]:

"4. A ground of appeal is a basis upon which the appellant will contend that the judgment, or a part of the judgment, should be set aside or varied by the Court in the exercise of its appellate jurisdiction. Not every grievance entertained by a party, or its legal advisors, in respect of the factual findings or legal reasoning of the primary judge will constitute a ground of appeal. Findings as to subordinate or basic facts will rarely, if ever, found a ground of appeal. Even were the Full Court to be persuaded that different factual findings of this kind should have been made, this would not of itself lead to the judgment, or part of the judgment, being set aside or varied. This result would be achieved, if at all, only if the Full Court were persuaded that an ultimate fact in issue had been wrongly determined. The same applies with respect to steps in the primary judge's process of legal reasoning. Although alleged errors with respect to findings as to subordinate or basic facts, and as to steps in a process of legal reasoning leading to an ultimate conclusion of law, may be relied upon to support a ground of appeal, they do not themselves constitute a ground of appeal.

5. A useful practical guide is that a notice of appeal which cannot be used to provide a sensible framework for the appellant's submissions to the Full Court is almost certainly a notice of appeal which fails to comply with the requirements of O 52 r 13(2)(b). Neither the notice of appeal nor the document containing the revised grounds of appeal was, or could have been, so utilised in this case."

5. The words of Branson J to which emphasis has been added are important. They support the viability of an appellate system which imposes limits on the issues which may be re-litigated in an appeal even where the appeal is by way of re-hearing.

6. The notice of appeal in the present case is widely cast and is better ignored. The issues in the appeal were sensibly narrowed by Mr Gill on behalf of the appellant in his written submissions supplemented by succinct oral argument. Put even more succinctly they may be confined as follows: Is this Court persuaded on the evidence before the Magistrate that the prosecution proved beyond reasonable doubt that the belief of the accused that it was necessary to do what he did in self defence was based upon reasonable grounds?

FACTS

7. The facts as expressly found by the Magistrate or so obvious that they did not need to be expressed were as follows.

8. On 5 July 2001 the appellant was working on a house under construction at a building site at Nicholls. Unlike this court building, the house was designed for wheelchair access and use. Mr Bradley Cooper and Mr Ross Smith arrived at the site in a truck for the purpose of delivering building supplies. Mr Cooper drove the truck into and bent a star picket which was supporting a wire fence. Abuse was exchanged and fighting broke out among various men on the site, including the appellant and Mr Smith. The appellant heard Mr Cooper tell him to settle down or let Mr Smith go. Mr Cooper gave the appellant a tap on the shoulder without any intention of attacking him. The appellant then assaulted Mr Cooper by punching him in the nose, believing that it was necessary to do so in his own self defence.

THE MAGISTRATE'S DECISION

9. The Magistrate's reserved decision was in the form of a comprehensive judgment delivered orally several days after the hearing. The Magistrate set out the appropriate principles of law, summarised the evidence as well as the facts outlined above, stated that the accounts given by Mr Cooper and Mr Smith were to be preferred to that given by the appellant and concluded as follows:

"...I am satisfied beyond reasonable doubt that Mr Tapp's belief that it was necessary to use self defence in this situation was not based on reasonable grounds."

ISSUES IN THE APPEAL

10. The essential issue in the appeal is whether this Court should overturn the finding of the Magistrate and conclude for itself that it was not established beyond reasonable doubt that the appellant's belief that it was necessary to act as he did in his own self defence was based on reasonable grounds.

11. There were some criticisms directed at the Magistrate's judgment which do not go to the soundness or otherwise of the Magistrate's decision on the essential issue. The Magistrate's reasons were in places couched in remarks which may well have sounded, as they were no doubt intended, to be very critical of the behaviour of those persons who took part in the fighting, including the appellant. However, on a general and total overview of the Magistrate's judgement the intemperateness, if any, of these remarks, has not been shown to have affected the Magistrate's reasoning process or the Magistrate's capacity to assess the credibility of the evidence of the witness with impartiality, detachment and accuracy. In any event they amount to fair and accurate comment about the standard of behaviour of those concerned.

12. Another issue raised on the appeal was in relation to the Magistrate's express finding that the appellant "was involved in a consensual fight". Coming as it does at the end of the judgment, it is not clear exactly what the Magistrate meant. Counsel in the appeal each conceded that the Magistrate was talking about the fight between the appellant and Mr Smith. If that is so, the finding cannot be challenged, and it makes no difference to the result. If, on the other hand, the Magistrate was referring to what occurred between the appellant and Mr Cooper, it should be stressed that it was not the appellant's case that Mr Cooper had consented to the assault upon him (which would have been a denial of any assault having taken place) but a reliance on self defence (which concedes that an assault took place but in a criminal case places the onus on the prosecution to show that it was not justified). The issue of consent did not arise on the evidence before the Magistrate and was not dealt with by the Magistrate as if it had. If the Magistrate's decision had turned on consent it would have done so on a false issue. The issue cannot be raised at this appellate stage.

13. As to the real issue of self defence, the case was clearly one in which the Magistrate's assessment of the witnesses was crucial to the findings of the facts on which the ultimate decision depended. True it is that the Magistrate made no use of the term "demeanour", but it would be a bold tribunal of fact that did that these days, particularly since the instruction issued by Kirby J in Earthline at ALJR 329, that in accordance with the studies of experimental psychologists, trial judges should strive, so far as they can, to decide cases without undue reliance on such fallible considerations as their assessment of witness credibility.

14. However in a careful analysis of the evidence of the witnesses, the Magistrate referred at several points to aspects of the evidence which clearly depended on the opportunity of observing them in the witness box. Both Mr Cooper and Mr Smith, in contrast to the appellant, were described as "unsophisticated people". The assertion that he did not "retaliate verbally" was characterised as one that "beggars belief". The appellant's evidence that he remained calm during the incident was "unacceptable". He was "evasive" when describing the incident and "unreasonable" in insisting that it was a fight and only "reluctantly" describing it as a conflict. On the contrary, the Magistrate found that Mr Smith and Mr Cooper, despite vigorous cross-examination as to their motives, and inconsistencies between previous statements and their oral evidence, withstood such cross-examination. The Magistrate was also expressly satisfied that neither Mr Cooper nor Mr Smith "sanitised or embellished" their evidence.

15. Accordingly, and despite the Magistrate's fallibility as to the assessment of the credibility of the witnesses, I am of the view that the Magistrate's findings as to the facts about what happened cannot be the subject of interference by this Court. From those facts the Magistrate drew the inference favourable to the appellant that he believed that he was acting in self defence. The final matter then was whether in the light of the established facts, the prosecution had shown that the appellant's belief was not based upon reasonable grounds.

16. That matter, in the nature of a value judgment, has to be treated like an inference from other facts established. That is to say, an appellate court is in as good a position to draw the inference or make the judgment as is the court below. But the appellate court does not decide the matter completely afresh for itself. It must decide positively that the court below was wrong and it may not come to that conclusion without taking into account the way in which the court below decided the matter. In this regard the Magistrate's reasoning process (as opposed to assessment of witnesses) was couched in terms both brief and wide-reaching, and possibly necessarily so. The Magistrate said:

"However, taking into account all of the evidence before me, and in particular all of the facts within Mr Tapp's knowledge, the circumstances then existing, the relationship between Mr Cooper and Mr Tapp, Mr Cooper's prior conduct, and the force used by Mr Tapp in relation to what he said he perceived to be a threat from Mr Cooper, I am satisfied beyond reasonable doubt that Mr Tapp's belief that it was necessary to use self defence in this situation was not based on reasonable grounds.

Mr Tapp, I find, was involved in a consensual fight. I find beyond reasonable doubt that Mr Tapp was not acting in self-defence. As I have stated earlier, unfortunately for Mr Tapp, notwithstanding his military training, he let himself be drawn in to behaving in a way that was as equally bad as the behaviour of Mr Cooper and Mr Smith."

17. I do not see any error in this approach. At first glance it may be difficult to see how the degree of force used would cast any light on the grounds for acting in self defence, but it must be remembered that what is to be justified is not self defence in the abstract but the degree of the actual force used. In terms of Zecevic v DPP (Vic) [1987] HCA 26; (1987) 162 CLR 645, the prosecution must exclude the possibility that the accused believed that it was necessary to do what he did in self defence. Thus the Magistrate should be taken to have found that the perception of the accused that he was threatened provided no reasonable ground for believing that it was necessary for his own self protection to then go and act with the degree of violence that he in fact used by landing a punch on Mr Cooper's nose. That seems to me a perfectly acceptable method of reaching a valid conclusion. I do not find for myself that the prosecution failed to exclude the possibility that the accused's belief was based on reasonable grounds. Conversely, as the Magistrate approached it, I am satisfied that the prosecution proved beyond reasonable doubt that there were no reasonable grounds for the accused's belief.

18. Of course one has to view the situation not with the wisdom of hindsight but from the point of view of a person in the position of the accused at the time. Nevertheless, the grounds on which the measures taken in self-defence are based must be reasonable and it does not necessarily follow from the fact that a person acts in retaliation or in anger or in panic, even understandably, that what is done is done on reasonable grounds.

19. The appeal is dismissed and the finding of the Magistrate confirmed. The information was in any event dismissed by the Magistrate under the provisions of now s 402 of the Crimes Act 1900, formerly and still better known as s 556A. I shall hear the parties on costs if they wish to be heard, now or later in the day. Clearly, the Court should try to prevent further costs being incurred in this matter.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Associate:

Date: 29 August 2002

Counsel for the Appellant: Mr S Gill

Solicitor for the Appellant: pappas, j - attorney

Counsel for the Respondent: Mr D Morters

Solicitor for the Respondent: ACT Director of Public Prosecutions

Date of hearing: 21 August 2002

Date of judgment: 29 August 2002