Linda Maree Peverill v Brooke Amy Crampton

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge J
• Judgment Date: 10 August 2010
• Date: 10 August 2010
• Docket Number: No. SCA 59 of 2009

[2010] ACTSC 79

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge J

No. SCA 59 of 2009

Between:

Linda Maree Peverill

Appellant

and

Brooke Amy Crampton

Respondent

Counsel for the appellant: Dr B Boss

Counsel for the respondent: Mr T Hickey

Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645

Vann v Palmer [2001] ACTSC 12

R v Healey (2008) 186 A Crim R 433

Douglas v The Queen [2005] NSWCCA 419

Henderson v McKenzie [2009] ACTSC 39

Magistrates Court Act 1930 (ACT), ss 207, 208(1)(b), 208(1)(e), Pt 3.6

CRIMINAL LAW —Appeal from Magistrates Court of the ACT

APPEAL AND NEW TRIAL — Self defence — application and interpretation Zecevic principle by Magistrate — turns on its own facts.

PRACTICE AND PROCEDURE — reasons for decision — need to articulate legal tests for self-defence — no issue of principle

1 The appellant, Linda Maree Peverill, was convicted in the Magistrates Court of a charge of assault occasioning actual bodily harm committed on 9 December 2008.

2 The charge arose out of an altercation with a neighbour, the complainant, in an area between the homes of the appellant and the complainant.

3 The appellant has appealed against her conviction and sentence. She was sentenced by being convicted and released on a good behaviour order, with security in the sum of $200, Forr 12 months.

The background

4 Although there were factual issues between the parties, the broad outline of the factual background was not in dispute.

5 The complainant and the appellant appeared to have had a history of animosity between them. The details were not given and are probably irrelevant.

6 The appellant came home from an appointment at The Canberra Hospital. As she walked past the complainant's residence she heard something that she considered was insulting to her and she made a comment back. The complainant came to her front door and words were exchanged between her and the appellant. The complainant's daughter also came out of the house at some stage in an aggressive manner.

7 The exchange of words continued and the complainant and appellant came close together and there was physical contact which resulted in the complainant falling over and the appellant also falling over either beside or on top of the complainant.

8 The complainant moved to get up and moved her left arm. The appellant bit the complainant on her left wrist. A friend of the appellant came to help her up and gave her a mobile phone with which she contacted the police. The complainant's daughter helped her mother up and also called the police. The police attended and spoke to theparties and the appellant was subsequently charged. Photographs of the scene and of the complainant's injuries were taken.

The court proceedings and decision

9 A summons was issued to the appellant returnable on 2 April 2009. The matter was then listed for hearing on 29 September 2009 and was heard by the learned Magistrate.

10 The prosecution called three witnesses: the complainant, a neighbour of the complainant and a police officer. A statement of the complainant's daughter was also tendered as she had died prior to the hearing. The appellant gave evidence and also called the male friend, with whom she had returned home on the day, to give evidence.

11 After hearing submissions, the learned Magistrate found the offence proved and convicted the appellant and sentenced her by making a Good Behaviour Order, with security in the sum of $200, Forr 12 months.

12 In the course of submissions, the issue of self-defence was raised, initially by the prosecution. The prosecution referred to the decision of the High Court inZecevic v Director of Public Prosecutions (Victoria) 162 CLR 645 (Zecevic). The following exchange then occurred:

MR PONT:	… Where the test that they have put together is virtually for a self …
HIS HONOUR:	They didn't put a test together at all.
MR PONT:	Sorry, your Honour.
HIS HONOUR:	The test, as set out in a joint judgment of their Honours.
MR PONT:	Yes, your Honour, is that an accused has to be, reasonably believed, which [sic] they were being threatened. It's a subject [sic] we test on the person and that there has to be no question in the defendant's mind that that was going to occur.

13 This appears to be a reference to the approach that Wilson, Dawson and Toohey JJ (with whom Mason CJ expressly agreed) took inZecevic when their Honours said (at 661):

The question to be asked in the end is quite simple. 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. Where homicide is involved some elaboration may be necessary.

14 The defence submission to the learned Magistrate was that:

Seeing [the complainant's] left arm coming across her body, about to strike her in the face, she acted in the only way she could at that point, given her position and given where she was lying on the ground. That to stop that assault from happening, she took action to stop the punch from landing, the arm from connecting with her face, by biting down and stopping that movement. Which it did do so. That movement did stop that assault.

15 The learned Magistrate expressed scepticism about whether the blow was evaded by the action of the appellant and suggested that, dynamically, the incident could not have happened as described by the appellant. His Honour also drew attention to the following questions and answers in the transcript of the taped interview police had with the appellant:

Q187:	How do you feel about biting [the complainant], at the time and after it, after biting her, after it?
A187:	I felt bad after, I didn't mean to go that far, you know, I didn't want it to go that far. You know, the — she's an older woman, and I'm a younger woman, but still, you know, we are grown women, should be able to talk about it.
Q188:	But at the time?
A188:	I was really angry, and I just wanted to get her off me, and, yeah. I mean, yeah, she had been in her nightie, and drinking all day, and it wasn't very pleasant.

16 The defence submissions also relied on some discrepancies between the evidence of the witnesses. It was also noted that there was ‘a history between both parties’.

17 His Honour accepted that there was animosity which, he noted ‘has coloured the evidence given’.

18 His Honour was satisfied of the genesis of the matter as set out above (at [6]) and that the complainant tried to withdraw from the argument but the appellant pushed her and that the appellant and the complainant ended up on the ground.

19 His Honour did not accept that the appellant feared injury and rejected the description of the incident given by the appellant.

20 His Honour then said:

The test of self-defence is, [sic] as is set out inZecevic and, in my view, it hasn't been established in this case. I'm satisfied that the requisite — agree [sic] that the defendant assaulted the complainant …. I'm satisfied, despite her assertion that she never drew blood, that blood was drawn and that that amounts to actual bodily harm.

I therefore find she assaulted and thereby occasioned actual bodily harm. The offence is proved.

The appeal

21 The appellant commenced the appeal by filing a Notice of Appeal on 29 October 2009. The grounds stated in it were:

1. 1. The Magistrate made an error in law in his interpretation of the self-defence test inZecevic v Director of Public Prosecutions 1987 HCA 26 [1987] HCA 26.

2. 2. His Honour gave insufficient weight to the appellant's evidence that she believed that it was necessary in self-defence to do what she did.

3. 3. His Honour should have been left with a reasonable doubt.

4. 4. The sentence was manifestly excessive in the circumstances.

22 The orders sought were:

1. 1. The conviction and sentence be set aside.

2. 2. The appellant be acquitted of the offence of assault occasioning actual bodily harm.

3. 3. In the alternative, the appellant be released without conviction on a Good Behaviour Order pursuant to section 17 of theCrimes (Sentencing) Act 2005.

4. 4. Any other order this Honourable Court deems appropriate.

Jurisdiction

23 The Supreme Court has jurisdiction to hear appeals against convictions and sentences by persons convicted by the Magistrates Court under Pt 3.6 of theMagistrates Court Act 1930 (ACT) (Magistrates Court Act) by virtue of ss 207 And 208(1)(b) and (e) of that Act.

24 Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seem to be as follows:

1. 1. The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong.

2. 2. The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.

3. 3. The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate's reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.

4. 4. The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.

5. 5. The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to...