In the matter of an order nisi to review a decision of the Magistrates Court [2005] ACTSC 50 (5 July 2005)

Last Updated: 26 July 2005

IN THE MATTER OF AN ORDER NISI TO REVIEW A DECISION OF THE MAGISTRATES COURT

[2005] ACTSC 50 (5 July 2005)

Magistrates Court Act 1930 (ACT), ss 219B, 219C

Zecevic v DPP (1987) 162 CLR 645

R v Prasad (1979) 23 SASR 161

No. SCA 41 of 2005

Judge: Higgins CJ

Supreme Court of the ACT

Date: 5 July 2005

IN THE SUPREME COURT OF THE )

) No. SCA 41 of 2005

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF AN ORDER NISI TO REVIEW A DECISION OF THE MAGISTRATES COURT

ORDER

Judge: Higgins CJ

Date: 5 July 2005

Place: Canberra

THE COURT ORDERS THAT:

1. The application for an Order Nisi be dismissed.

1. This is an ex parte application for an Order Nisi seeking review of a decision by Magistrate Madden. The application concerns a decision by his Worship to dismiss an information alleging that the respondent on 16 July 2004 assaulted the person named therein and occasioned to him actual bodily harm. The appellant was ordered to pay the respondent's costs.

2. The sole power to review an acquittal recorded in respect of a criminal information determined in the Magistrates Court is conferred by s 219B of the Magistrates Court Act 1930 (ACT). The grounds upon which such an order may be made, in such a case is, per s 219C -

(2) ...

(a) that there was a prima facie case of error or mistake on the part of the Magistrates Court;

(b) that the Magistrates Court did not have jurisdiction or authority to make the decision;

(c) that the decision of the Magistrates Court should not in law have been made;

3. It is not suggested that s 219C(2)(b) applies. The suggested error is that the learned Magistrate -

... erred in law in finding that there was evidence which was capable of supporting or finding that the defendant believed upon reasonable grounds that it was necessary to commit the assault as he did.

4. The finding followed a hearing concerning an incident at the Lighthouse Bar in Belconnen on the evening of 16 July 2004. The respondent was working as a security officer at the bar that night; he was one of two security officers on duty at the time. Mr Johnstone, manager of the bar, described the respondent as the taller of the two, possessing short hair; whereas the other security officer had curly black hair.

5. The complainant had conceded consuming about 13 alcoholic drinks before the alleged assault. He approached the taller security officer and abused him, calling him a "wanker". The complainant walked away and felt blows to the back of his head; he fell to the ground, attempted to crawl away and felt kicks to his head. He lost consciousness.

6. That evidence supports, but does not require, a conclusion that the kicks were both delivered by the respondent, and that they were without any legal justification.

7. An eyewitness, Mr Fulton, observed a fight involving the two security officers and a number of patrons. Mr Fulton saw one patron lying on the floor. The patron attempted to push himself up, received a hard kick to the head and fell back down. He attempted again to raise himself to his feet and was again kicked down. It was open to conclude from this that the kicks lacked justification. On the other hand, it was apparent that the person on the floor could have launched himself at the security officer had he wished to resume the affray.

8. Ms Toole, another eyewitness, saw the taller security officer kick the person on the floor, apparently with deliberation. The blow was very forceful. However, she conceded that the preceding affray had been very violent.

9. The third eyewitness called was a Mr Horner. He observed that the alleged victim, while on his knees, was punched in the torso, head and chest. Then, as he attempted to get up, he was punched and kicked in the torso and head. Finally, the taller security guard kicked the alleged victim; he stepped back and "set himself up to do so". The kick caused the patron to fall back. Mr Horner considered the kick was to the chest, not the head; it was his impression that the security guard was attempting to subdue the patron rather than to hurt him.

10. The prosecution did not call the other security guard. Other witnesses testified that the complainant and his companions, who were all behaving violently and resisting removal from the bar, caused the earlier affray.

11. That plainly raised the question of self-defence in respect of the respondent himself, his fellow security officer, other patrons and the protection of the premises.

12. His Worship found that while there was prima facie evidence of an offence, it was not possible that a properly instructed jury could convict the respondent, rejecting self-defence as explained by the High Court in Zecevic v DPP (1987) 162 CLR 645.

13. That finding was in consequence of a submission from Mr Pappas for the respondent that there was "no case to answer". In rejecting that submission, his Worship foreshadowed that, if he was asked, he could find that he was not then satisfied that self-defence had been excluded. His Worship also noted that -

... at 2.30 pm on Monday, 9 May the defence counsel, Mr Pappas, informed the Court that he was electing for summary jurisdiction.

14. Then his Worship continued -

I consider the evidence so poor and so conflicting that it would be unsafe to leave this sort of matter to the (sic) jury and I would not be prepared to do so.

15. His Worship did state to the prosecutor -

What you've got to persuade me about is to whether I force the defence to either remain committed to their election for summary trial or proceed to the Supreme Court.

16. That indicates that whilst the respondent had consented to summary jurisdiction, the Magistrate had yet to assume it. Mr Pappas had foreshadowed a Prasad application. (See R v Prasad (1979) 23 SASR 161).

17. The prosecutor conceded that "once [your Worship has] gone past the prima facie stage, it is appropriate to give a Prasad direction where that applies".

18. Ms O'Meagher, of course, submitted that it did not apply. His Worship concluded, without prosecution demur, that the complainant and his associates attacked and set upon the two security officers; they vastly outnumbered the two security officers. That finding was clearly open.

19. The prosecution could only submit that the respondent had "put the boot in" and was acting otherwise than in self-defence.

20. I entirely agree with his Worship that "the security guards would have been remiss in not trying to secure the premises from ongoing fracas".

21. However, his Worship considered that a jury could not safely have rejected self-defence, applying the Zecevic test.

22. His Worship considered that the level of violence from the alleged victim and his associates was such that there was ample justification for self-defence. It was effectively a waste of time to let the matter go further.

23. I have only to say that I completely agree. I find it difficult to understand the rational basis for the challenge mounted by this application. The question is not whether, on the theory favoured by the prosecution, a case could be made to rule out self-defence; the question is whether that could safely be done. Clearly, it could not be. The respondent might reasonably have feared that the alleged victim would continue his mindless violence and have sought to prevent it by rendering him as insensible as possible.

24. The application for an Order Nisi is dismissed.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 5 July 2005

Counsel for the Applicant: Mr R Refshauge SC

Solicitor for the Applicant: Office of the Director of Public Prosecutions

(ACT)

Date of hearing: 9 June 2005

Date of judgment: 5 July 2005