District Court New South Wales Medium Neutral Citation: Brown v R [2024] NSWDC 227 Hearing dates: 7 June 2024 Date of orders: 19 June 2024 Decision date: 19 June 2024 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: See [Order] Catchwords: APPEALS — Procedure — Orders on appeal CRIME — Violent offences — Reckless grievous bodily harm CRIME — Violent offences — Stalking or intimidation Legislation Cited: Crimes (Appeal and Review) Act Crimes (Appeal and Review) Act 2001 Crimes (Personal & Domestic Violence) Act Cases Cited: Charara v R [2006] NSWCCA 244 Dyason v Butterworth [2015] NSWCA 52 Charara v R [2006] NSWCCA 244 Fox v Percy (2003) 214 CLR 118 Lunney v DPP [2021] NSWCA 186 Minister for Immigration and Border Protection v SZVFW 92018) 163 ALD 1 McNabb [2021] NSWCA 298 Allesch v Maunz (2000) 203 CLR 172 McIlwraith v R [2017] NSWCCA 13 Category: Principal judgment Parties: Rex (The Crown) Stephen Brown (The Appellant) Representation: Cranney counsel for The Appellant Wiggins for the Director of the Office of the Department of Public Prosecutions File Number(s): 2022/00075786 Publication restriction: NA JUDGMENT Introduction 1. On 27 September 2023 Stephen Brown, the appellant, was convicted of three offences. Those convictions were of stalking or intimidating with the intention to cause fear which was alleged to have occurred on 15 March 2022, and then on 16 March 2022 of recklessly causing grievous bodily harm and of reckless wounding. There seems to be something of a grey area as to why there were the two offences the subject of the proceedings arising from 16 March 2022. Nothing however turns on this as the issue in this appeal in relation to the events of that day is whether the Crown has demonstrated beyond reasonable doubt that the actions taken by the appellant on that day were not reasonable in the circumstances as he perceived them. 2. The conduct of this appeal is governed by section 18 of the Crimes (Appeal and Review) Act ("CARA"). The approach to take in respect of such appeals is not in issue between the parties with the Crown accepting the submissions of the appellant as set out in the written submissions. Those submissions accept that error needs to be shown by an appellant in such an appeal; it may well be there remains room for argument in that regard but that is not an issue that needs to be determined in this matter. Other than for that observation the parties have undoubtedly taken the correct approach. Given the lack of contention about it the position can be summarised as follows, with the principles being drawn from cases such as Charara v R [2006] NSWCCA 244 and Dyason v Butterworth [2015] NSWCA 52 and is as follows: 1. An appeal against conviction is to proceed by way of a rehearing on the basis of evidence given in the original Local Court proceedings: s18(1) Crimes (Appeal and Review) Act 2001. 2. The appellate judge is to form their own judgment of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the hearing: Charara v R [2006] NSWCCA 244 at [18]. 3. The Court is entitled to consider the reasons of the magistrate including an assessment of credibility issues because the appellate function could not properly take place without reference to them: Charara v R [2006] at [23]-[24]. 4. The Court is obliged to give the judgment which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23]. 5. The Court is not obliged in every case to undertake a complete review of the whole evidence and form its own view of the appellant's guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lunney v DPP [2021] NSWCA 186 at [44]. 6. The approach may also be described in the way stated by Justice Gageler in Minister for Immigration and Border Protection v SZVFW 92018) 163 ALD 1 as the "correctness standard" which was his Honour's way of describing the standard being spoken of in Fox v Percy. 1. I would also note the view of Bell P, as he then was, from the case of McNabb [2021] NSWCA 298 at [25]: "the task for a District Court judge in hearing a section 18 appeal is to form his or her own judgment on the facts and to determine on the basis of the evidence that was before the magistrate (supplemented by any further evidence received pursuant to section 18 (2) of the CAR Act or as a result of the calling of a witness pursuant to section 19) whether that evidence was sufficient to demonstrate the appellant's guilt beyond reasonable doubt. If it did not, error will have been established. Error of law in reaching the conviction may also be established and the rehearing will involve the court reaching a fresh conclusion as to the appellant's guilt on the basis of evidence given in the local Court but without the error of law which tainted the result at first instance." 1. His Honour then went on to observe that a dismissal of a section 18 appeal against conviction will necessarily carry the conclusion that the magistrate did not commit "some legal factual or discretionary error" citing Allesch v Maunz (2000) 203 CLR 172. The grounds of appeal 1. The written submissions of the appellant identify two main grounds of appeal or what are said to have been errors or reasons why the Local Court determination was wrong. The first related to the intimidation charge and it was that it was not reasonably open to find that the appellant either intended for the complainant Georgia Wise ("the first complainant") to fear physical and mental harm or that he knew his conduct was likely to cause that harm. This submission relies on the fact that the offence under section 13 of the Crimes (Personal & Domestic Violence) Act, as established by McIlwraith v R [2017] NSWCCA 13 is one of specific intent. In support of this assertion it is said that neither the evidence of the complainant nor the words attributed to the appellant necessarily indicate the relevant intention (1). It is said the Magistrate disregarded the appellant's assertion to police that he was not mindful that he was on a residential property (2) and also disregarded the unchallenged evidence that the appellant "sometimes did not think of the consequences of his actions" (3). That unchallenged evidence was in the form of a report authored by a clinical nurse consultant of the Justice Health network dated 15 June 2023. The relevant part of the report is at page 2 where it is said "Mr Brown suffered a serious head injury in 2015 following a bicycle accident in Byron Bay. He stated that he was in a coma for around two weeks and hospitalised on the Gold Coast. When asked whether he had noticed any problems with his general functioning since this accident he suggested that he sometimes did not think of the consequences of his actions as well as he did prior to his head injury". 2. Three points can be made about reliance on this report. Firstly it does not address the particular occasion in question. Secondly there is no evidence of the appellant that this was something that was active on the day in question. Thirdly the report is not in the absolute terms as put by the submission for it is qualified by the words "as well as he did prior to his head injury", so that it is not a total failure of thinking of the consequences of his actions. The appellant also relies on a submission that there was nothing in the complainant's behaviour that would have alerted the appellant to her apparent fears (4). That would appear on the face of it to be a somewhat illogical contention as what is relevant on this ground is the intention to cause fear so that logically there would not be evidence of fear prior to it being caused. 3. The appellant challenges the evidence of the complainant who stated the incident lasted no more than five minutes when her own account suggests it lasted less than a minute (5). 4. Lastly, and a point emphasised in oral submissions, it was argued that the version offered by the appellant in his interview to police was plausible and should have been accepted as reasonably possible, or that it might be possible, so that in line with a Liberato direction the charge ought to have been dismissed (6). 5. In respect of the events on the following day it is said the magistrate failed to give due regard to the circumstances as perceived by the appellant (7). The argument is that it was open to find that the conduct of using what the appellant repeatedly refers to as a Leatherman, part of which it should be recognised is a knife, occurred when he was pinned on the ground being violently assaulted and in fear for his life (7a). It is said it was unreasonable for the magistrate to presume the appellant heard the second complainant Keith Wise ("the second complainant") say "stop hitting me and I'll let you go" or that the appellant's use of the Leatherman only occurred after that was apparently said (7b). The submission that the Magistrate "presumed" something is better expressed as being a finding that the magistrate made. 6. These grounds were expanded upon in oral submissions. As to the intimidation charge it was conceded that the conduct of the appellant could be considered inappropriate, that the conduct might be seen as being "hot" but not criminal (8). Much is made of the fact that on his view of events the appellant was not mindful of being on residential property though it was conceded he was aware that he was on private property (9). Reliance also seems to be being placed on the fact that the appellant seemingly had an prejudice that people such as the complainant are poor drivers; the complainant was a young female of dark skin. Whether the prejudice is a sexual or racial one was not clarified (10). Reliance is placed on what is said to be an inflated version of events by the complainant and that the exchange founding the complaint could have lasted no more than 30 seconds (11). Reliance is also placed on the appellants own recreation of how he spoke the word "bitch" in his police interview which was played to the court on the appeal. As recreated by the appellant in that interview he spoke the words almost under his breath as an aside (12). It is said that once he realised he was on residential land he discontinued what he was doing. 7. The residential point is without merit. It amounts to saying that what constitutes stalking or intimidation varies depending on whether it occurs on private land that is not residential, or private land that is residential land. 8. The appellant then addressed the events of 16 March 2022. It was helpfully explained that the two charges arising from these events reflect the wounding created by the stabbing and the grievous bodily harm being attributable to the injury to the lung. Suffice to say there is no issue on the appeal in terms of what injuries were inflicted. 9. The short point of the appellant is that he believed his life was in danger and therefore it was reasonable for him to respond to that danger by repeatedly stabbing the complainant (13). Furthermore it was said, quite properly, that in line with the Liberato direction that even if the magistrate may have doubted what was being said by the appellant, so long as it might be true then there should be a dismissal of the charges (14). The points argued to support this argument were as follows: 1. The version of events given by the appellant to the operator on the 000 call; 2. The lack of credit of the second complainant. In that regard it is noted that part of the second complainant's evidence was rejected by the magistrate, being his assertion that he was only following the appellant for the purpose of identifying him as opposed to confronting him. 3. The circumstantial support for the version given in the 000 call. I would also note that whilst the appellant's police interview does not go into the events of 16 March in great detail and certainly not as much as it did of the events the previous day it is said in the interview by the appellant that he thought he was going to die and that he thought he was a "goner". The point is made that the knife was not introduced until the appellant was on the ground. This occurred in circumstances where it was submitted by the second complainant that he was infuriated and very angry and that it was he who first pushed the appellant and it was then that a fight developed. 1. The Crown maintains that no error of the magistrate has been identified. In respect of the intimidation charge it is said that in all the circumstances borne out by the evidence it can be inferred that the necessary intention was present. The situation is the appellant took issue with the first complainant's manner of driving. It should be noted that he was in fact not the first car behind her but one car further back. Additionally whilst the road is the main road between the townships of Bangalow and Lismore it is a road the character of which is that there are driveways to properties frequently observable along it. That somebody might turn off it is something a driver should be aware of. Nor is there any evidence that suggests the car immediately behind the complainant's car suffered any difficulty. The description used by the Crown of a "road rage incident" appears apt. The appellant, considering the conduct of the complainant to be unsatisfactory, himself turns off the road following her for the purpose of one might infer taking issue with her manner of driving. Even if as the appellant argues he turned off to take the registration, he admits to doing more than that; he admits to calling her a silly bitch. The meaning of intimidate under the Act is defined by section 7 to include harassment. The Crown says the appellant left because he realised he had overstepped the boundaries of acceptable behaviour. 2. As to the events of the following day the Crown challenges reliance on what is said in the 000 call; by the time that call is made it is said the appellant is aware that he needs to justify having stabbed another person. The Crown notes the distinct lack of visible injury to the appellant in his police interview; there is no split lip, no visible bruise, nothing supporting an attack of the ferocity that he says made him consider that he was in fear of his life. This lack of injury is said to show the second complainant exercising restraint. I would also note that none of the versions of events given by the appellant were given on oath or the subject of cross examination. Whilst that does not mean the version so conveyed could not by reason of the Liberato direction result in acquittal it is a relevant factor to take into account. In contrast there was tested evidence of the complainants, which the magistrate accepted almost entirely, and other evidence, such as that of Andrew Wise. 3. The Crown also notes that the appellant got out of the car with the knife though it would seem it was attached to his belt. It notes that he did not park in his own house which is said to indicate that he expected that there would be a confrontation. The rejection of part of the evidence of the complainant by the magistrate is acknowledged but the magistrate goes on to note that the second complainant was very frank in respect of other matters and of course it is open for a finder of fact to accept some part of the witnesses evidence and reject others if there is a logical reason to do so. 4. In short the Crown says that the appellant is exaggerating the circumstances in which he found himself, that is, to say he feared for his life is an exaggeration (or as the Crown puts it at [19] of the CWS, it is a bald assertion) and that to stab somebody the number of times established by the evidence, be at nine or 11 was in all the circumstances not a reasonable response in the circumstances as perceived by the appellant. The focus at the appeal was on the "second limb" of the self defence issue, yet these submissions of the Crown show there is a challenge to the appellant's case relying on him being in fear of his life. The facts 1. As will have been gleaned from identifying the arguments above the events of the 15th and 16th of March 2022 are connected. The connection is that the events of 16 March occurred as a result of the second complainant, who is the father of the first complainant, taking umbrage, or in his words, being infuriated at what had occurred on 15 March. There was the incident on 15 March 2022 when the first complainant made a turn off the Lismore - Bangalow Road so as to enter her home. The appellant followed her and it was on the property of her home where the intimidation allegedly occurred. The second complainant, and who also lived at the property in question, the next day noticed what he thought was the appellant's car when he was at nearby Clunes taking his son Andrew to school. Andrew had seen the appellant's car the day before. Believing the car was the appellant's, the second complainant followed the car. 15 March 1. In evidence was a statement of Andrew Wise the then 16-year-old son of the second complainant and brother of the first complainant. He says that on 15 March 2022 he heard his sister come down the driveway and heard some arguing. He looked outside and saw a dark blue Mercedes reversing from the driveway. The first complainant came inside upset and crying. She told her brother that the man in the Mercedes had followed her into the driveway and started yelling and screaming at her. 2. The police interview of the appellant was Exhibit 7 in the Local Court. As already noted it says little of the events of 16 March though I note that the appellant says at A 39 that he was running for his life. Despite indicating he wanted to exercise his right to silence he nevertheless gave an account of events of 15 March and no objection has been taken to that evidence. Relevantly he said the speed limit was about 100 km/h and that he was driving with two cars in front of him. He said one was travelling relatively too close which suggests that it was the car between him and the first complainant that it was too close to the first complainant. He said the car in front which I take to be the complainant's car seemed to indicate for about two seconds and then jumped on the brakes so went from 100 km an hour to absolutely stop. He thought the car in front of him would rear end the front car and that he in turn would rear end them. He says his car saved him and had he been in another car he would have been stuffed. I would note that there was no collision by any car. He then says the vehicle turned 90 degrees at a slow speed like it had stopped even though there were no oncoming vehicles. Given that he had seen an indicator and that the vehicle is turning right across the road this seems unremarkable. 3. He said he was 50 m back doing a hundred kilometres an hour. He said the front vehicle made a 90 degree turn, that the car in front of him started up and kept going again and he turned off the road and followed the front vehicle which he said was silly. He said it went down to a residential area. He says he got out his phone to take a photograph of the number plate. He said he said something silly like "you're going to jail". He concedes he should not have said that. He says he then asked if she was Brazilian and she said no. At A 68 he gives some odd answer in furtherance to what was just quoted namely that he had been in the Middle East and thought the complainant might have been Israeli or Brazilian and that he thought silly bitch she could have caused a three, an accident. The word bitch does not appear in the transcript of the interview but it was agreed at the appeal that that is in fact what was said. He said there was no "effing" which I take to mean no use of the word "fuck", explaining that once a female is involved that you can't do or say certain things. He then went on to relate a tale of an incident some years ago in Alstonville which seemed to be a story of something akin to a road rage incident similar to the present. He goes on to say at A 71 "I've never seen anyone just stop at, without, with complete disregard for not, not even looking at the rear vision mirror. Like in New Zealand you'd we'd pullover and then look and pull off the road and then if you had to go, mmm, and then you go. But ah there was no anger but um it was I nearly had ah, as I said only AVS stopped me from crashing". 4. Bearing in mind the appellant seeks to rely on this untested evidence as to why his version of events should be considered to possibly be true this is fairly bizarre evidence. On his own evidence there was not a complete disregard for the cars behind because the complainant had put on her indicator albeit on the version of the appellant later than she should have. He is also suggesting as I understand this evidence that a person wanting to turn right into their home across the road should in fact pullover to the left and wait for the road to be clear on both sides before then affecting a turn across both lanes of traffic. That would not be the way one would ordinarily expect traffic to turn right into their own home or any other property. 5. At A78 he refers to the complainant's conduct as "it was an egregious breach of all the road code and against common sense". 6. These passages from the interview suggest to me that great caution should be given before accepting the evidence of the appellant. They reflect an exaggerated and distorted representation of what occurred. 7. He then admits that he drove on to the private property and parked to take a photograph. He said he was not aggressive. He says he said "you could have caused a um a three-car three-car pileup because you didn't…"; A 85. At A 86 he continues "you because you crossed that, those two white lines in a 100 K zone. And she is going, I did didn't it there was no cars there. And I said "oh you silly bitch" sort of just not you silly bitch it was like you silly bitch." It was the emphasis placed on how he said this that led to the police interview recording being played on the appeal which has been described above. He said he was about 2 m away from the open window on the passenger side of the complainant's vehicle who was still in the passenger seat. 8. It is at A91 that there is reference to his understanding of where he was which the appellant heavily relies on when he says "I'm mindful that you can say or do things up to a point but I wasn't mindful that I was on their property and I probably shouldn't have been there". At A 92 he continued "I kind of get to a point where some people are aware unless you complain about things then that, then it becomes standard behaviour, and in terms of her, I should have, in hindsight, I should have said said you know, I, I should have assessed her age to start with and then, is there anyone in the in the house that we talk to um about because you could have been killed, you could have killed other people. I could have been, it's, should have been a better way of doing things. Then at A 93 "but once I'd once I'd said oh you silly bitch it was like ah, yeah probably probably best to go". 9. That last answer suggests that he considered there was possibly something untoward about the way he spoke to the first complainant, including calling her a bitch, which runs against the argument seeking to rely on his re-creation he gave in his interview of how it was said. 10. I note that at A110 he again says in hindsight it would have been better to talk to her father. This again is more supportive of the Crown case than the appellant's defence. 11. The first complainant gave evidence at the hearing. She said that she had accelerated to ensure she did not inconvenience the three cars behind her and that she put on her indicator 100 m "usually" before her house. As there was oncoming traffic she had to come to a complete stop as did the cars behind her. As she exited off what she called the highway she was honked. She drove down her driveway. She saw the dark blue Mercedes had stopped and saw the white Caucasian male inside. She drove down her driveway and as she pulled into her car park saw the dark blue sedan had followed her down by which she meant down her driveway which is about 50 m down the hill. She saw the appellant approach with his phone and started to wind her window down. She did not recognise this person. She said she asked him if he needed anything and he said he was filming her and that she was going to jail. She said he said "you're going to jail bitch" she said he also said "you're one of those Brazilians". She asked if he wanted her to get her father and he then said oh you're a fucking bitch, you're a fucking cow" and that's when he went back to his car and went. She said he quickly retreated after calling her a bitch. She went inside the house where she fell with anxiety and spoke to her father. She said that he came quite close to the open window which I take to be the passenger window. She said she was scared. She said his tone was threatening and aggressive. She said her father rang the police and she understood the police did not pick up. 12. In cross examination it was accepted that the turn occurred in a 100 km zone at a time where there is just one lane and that it is a sweeping left-hand bend. It was put to the first complainant that the appellant did not call her a fucking bitch and she maintained he did. She disagreed that the appellant never yelled or raised his voice. She disagreed that he spoke in a fairly calm conversational manner. She disagreed he never called her a fucking cow or a Brazilian bitch. She accepted she did not sound the horn or yell out to get attention. 13. The second complainant gave evidence of his daughter telling him the man had called her a stupid bitch and " you're one of those Brazilian bitches". 14. In the magistrate's reasoning she found the first complainant to be an impressive witness. Her finding was that to the extent the appellant's version differed from the first complainant it was the first complainant's version that was accepted. Her Honour found that the conduct of the appellant actually caused the first complainant to fear physical or mental harm. I agree with that finding given the evidence of the first complainant as to her reaction when being spoken to by the appellant; the fact that she was scared and subsequently collapsed with anxiety a short time later. It is plainly harassment and thus within the definition. 15. The appellant placed much weight on the case of McIlwraith which establishes this is an offence requiring the establishment of specific intention by the prosecution. The magistrate expressly found that was satisfied though it must be said she did not provide reasons for that, though a lack of reasons was not argued to be a basis of the appeal. I address this below. 16 March 1. The evidence concerning the events of 16 March came from the second complainant. I will not now recount the evidence of Mr Wise beyond what is referred to in the judgment of the magistrate and as addressed by the appellant's submissions. In doing so I adopt the approach suggested by Lunney. The point being made is that the version of events of the appellant via the 000 call and by his record of interview allows for a finding that what he says might be true, and see the points 7, 7a, 7b, 13 and 14 in parentheses above. 2. Before dealing with the 000 call and the judgment I note there was also evidence of Andrew Wise. 3. The evidence of Andrew Wise as to 16 March is that he saw the appellant throw a punch at his father and does not refer to his father first touching the appellant. That he did not see his father first touch the appellant does not damage his credit; rather it fits with the fact the second complainant was walking away from him, and that the first touch was with the open palm, not some observable haymaker. Andrew Wise saw his father on top of the other man with the other man screaming out help me and he heard his father trying to calm the man down. Andrew Wise saw punches being thrown and his father saying words to the effect of if they could get up and talk. The evidence of Andrew was that when his father eased his hold the man would start throwing punches 4. The police statement of Constable Cklamovski states that the appellant was hiding from police. Thus whilst he acted with concern for the second complainant by telephoning 000 he nevertheless was hiding. The constable pursued the appellant though it is not clear whether the appellant was aware that he was being pursued by police and he may perhaps have been acting in fear of being pursued by the second complainant. When he saw police he lay on the ground. The statement of Constable Fraser suggests that the lying on the ground was in obedience to a police direction to do so. The statement also states that on the appellant's belt was a knife pouch with the word "leatherman", consistent with the appellant's version of events that he had the knife so stored as he exited the car. 5. Little was said about these events in the police interview as the appellant largely exercised his right to silence and that of course is something that cannot be taken into account in any way adverse to him. He did say that it happened very quickly and that he was in fear of his life until just before the police arrived. He said he ran from the driveway from where he had been sort of hiding. He said he felt uncomfortable because he thought people would be able to try and hunt him down. This, he said, speaks of his fear for his life. He said "still might actually continue de, yeah depending on ah, what the retaliatory ah action that the extended family of this person takes". This evidence seems to be of a similar type of almost a fantasy mode of thinking of the appellant consistent with the way he described the events of the day before. My own assessment of his evidence in this respect and generally remains that it appears exaggerated, and ought not be relied upon. 6. He further said that A131 that he suspected he might be following me and "and then all sorts of alarm bells started going". As to the events of 16 March he said he was very regretful and that he was placed in a very awful situation very quickly; A 141. At A 142 he said he thought he was "gunna die". He admitted the multitool (the Leatherman, ie knife) was involved in the altercation. He again says it A157 he thought he was a goner. 7. The transcript of the 000 call formed part of exhibit one. That was a call initially made by the person who was the resident at the place where the appellant went after leaving the scene of the fight. The person says it looks like the gentleman has been attacked. That person handed the phone to the appellant. The appellant said he believed he was recognised and followed. He said the man stopped just behind his vehicle when he stopped outside the house. A man about 60 got out and was aggressive right from the get go. I didn't get a word in and he started punching me. He said he suspected it was related to a motor vehicle incident the day before and that somehow they must have been lying in wait for him and just followed him. He said that "I pulled a knife on the man because I thought, well he attacked me and um my gut feeling was if he is pre-meditating something then I'm he probably… 8. He further said when it was put to him he pulled a knife "yes and then screamed for help um he was on top of me punching me incessantly and I am repeatedly got him in the neck" 9. Further in the conversation he says "I do not want to be arrested, I um understand pulling a knife on someone was um, yeah I just felt in fear of my life before this happened" and he later repeated that he was in fear. 10. Also part of exhibit 1 was a photograph of the leatherman tool. Whilst the blade is reasonably short it is nevertheless indeed a knife and should not be misunderstood to be something in the nature of a tool for undoing knots and the like. 11. The magistrate set out the evidence of the second complainant. She referred to his evidence of being infuriated that somebody had dealt with one of his children as the appellant had on 15 March. His evidence was that throughout that night the first complainant was pretty upset. She referred to his evidence that it was he who first touched the appellant using an open flat hand to push the appellant once to the chest area. His evidence was that the appellant's eyes went wild and he lunged at him and threw punches at him which connected and he threw punches back. He says they ended up wrestling on the ground with him on top. He tried to pin the appellant but the appellant's right arm was still free and throwing punches at him. They were connecting to the left side of his back area and under his arm on his chest area. He said to the appellant "stop punching me and I will let you go". The appellant did not but kept screaming help. The appellant continued to punch the second complainant so the second complainant punched him with a closed fist to the head once or twice. He said they would only have been on the ground like that for seconds and it wasn't long. 12. I would note that the evidence as to the fight is consistent with that given by Andrew Wise. 13. He also gave evidence that the time he first pushed the appellant that the appellant had not been aggressive towards him. That is a frank concession to make. 14. Her Honour at T 18 of 20 July 2023 noted that the appellant argued that the prosecution have not negatived self defence. That argument relied upon the magistrate rejecting the evidence of the second complainant as to his assertion that he was following the accused in order to identify him as opposed to the appellant's argument that the second complainant was following him in order to confront him. The submission went on that based on what was asserted by the appellant to the police and the 000 operator that he should be found to have been in fear for his life and genuinely believed it was necessary to act as he did in his own defence; that is, the submission is the prosecution have not shown beyond reasonable doubt that the appellant did not believe it was necessary to act as he did. That is dealing with the first limb. In respect of the second limb the appellant argued that the second complainant was a man of large build who had approached the appellant and pushed him in what was said to be an aggressive manner and was in fact on top of the appellant at the time of the use of the knife. Reference is made to Exhibit 8 and the mental health impairment of the accused. 15. At T 20 the magistrate expressly states she does not accept the second complainant's evidence as to the reason he was following the accused but immediately went on to say that in other respects he gave a cogent account of the incident. She referred to his candid concessions as to why he chose to confront the accused once at the cul-de-sac. She said that his evidence of saying "stop hitting me and I'll get up" was important. She accepted the supporting evidence of Andrew Wise. This rejection of part of the second complainant's evidence and acceptance of other parts of it is entirely orthodox; the evidence accepted was not only considered cogent and amongst evidence where concessions were made, but is also consistent with other evidence, namely Andrew Wise. 16. At T 22 the magistrate found that it was when the appellant was on the ground that he accessed the knife. She found the words "stop hitting me and I will let you go" were spoken by the second complainant. 17. At T 24 Her Honour identified that in order to "negative" self defence the prosecution must prove beyond reasonable doubt either that the accused did not genuinely believe that it was necessary to act as he did in his own defence or that what he did was not a reasonable response to the danger as he perceived it to be. 18. It is at T 27 that Her Honour deals with the self defence issue. 19. At T 27.30 Her Honour found that the Crown failed to satisfy beyond reasonable doubt the accused did not believe it was necessary to act as he did. 20. As to the second limb her Honour noted favourably to the appellant that the second complainant had approached with the intention of confronting him about the events of the previous day, was a man of large build and was clearly angry. Nevertheless in light of the finding that the second complainant had said "stop hitting me and I'll let you go" and in circumstances where there were at least nine strikes with the knife Her Honour was satisfied beyond reasonable doubt the accused acted in a way that was not a reasonable response to the danger as he perceived it. Determination 15 March 1. It is necessary for the prosecution to establish beyond reasonable doubt that the appellant had the specific intent of causing the first complainant to fear physical or mental harm. 2. The surrounding facts and circumstances allow for an inference to be drawn, beyond reasonable doubt, that the appellant had that intention. The inference can be made based on the following factual matters which are established; 1. The somewhat exaggerated view of the appellant as to the conduct of the first complainant in driving. For example he expresses the view that he could not see how a collision would be avoided yet there was no collision by either he or the car in front of him. 2. He proposes that she should have behaved in a way which is highly unusual, namely to pull to the left before turning right across two lanes of traffic. 3. The appellant's view is that he is almost acting in an educational manner of confronting a young person to better educate them as to how they should conduct themselves when using the road. On his version of events there was no raising of voices and merely muttering under his breath some offensive words with no intention to cause any harassment. Yet on the version given by the first complainant his voice was raised, and the offensive comments were made more than once. The first complainant was accepted as being forthright and quite plainly rejected in a very believable manner essential elements of the contrary case that were put to her. Her evidence was supported by another witness, Andrew Wise. There is of course no onus on the appellant. The point is that there is good reason to reject the appellant's evidence looked at in isolation (see eg 54.1 and 54.2 above) and when the entire evidence in the case is considered even more so. The task then is to return to the Crown case and consider whether the Crown has established the elements of the offences. 4. The language he used on his own admission is the language of confrontation. He was disturbed enough by what he saw and his view of what he had seen that he turned off the road to follow a person down a private driveway. 5. It was at the suggestion of engaging a mature male that led to him retreating suggesting that in fact he was taking advantage of the situation of a youthful female. 6. Thus the version of the appellant as to what occurred is rejected. The evidence of the prosecution case is that of the first complainant (and the second complainant as to the complaint made, and the state of the first complainant) and Andrew Wise. The finding is the appellant's voice was raised and offensive words were spoken. 1. In all those circumstances it is plain that he was displeased with the first complainant and wished to admonish her as a result. To this end, he turns off a road, enters private land, and speaks offensively at loud volume (the first complainant is supported by Andrew Wise in that regard). It is equally plain in those circumstances that he intended to harass the first complainant, the person he was abusing. 2. The range of arguments raised by the appellant in appealing the intimidation charge are identified above by the numbers 1 to 12 (but not 7, 7a or 7b) in parentheses have been addressed either directly or indirectly, with none of them succeeding. To briefly summarise the position by reference to those numbers, the position is as follows: 1. this can be inferred, as explained above. 2. the "residential" point fails; see at [10]. 3. this is addressed at [5] above. 4. this is addressed at [5] above. 5. whether the incident lasted 30 seconds, 1 minute or 5 minutes does not alter the outcome, given the found conduct of the appellant, and the circumstances in which he so conducted himself. 6. the appellant's version is rejected. The appellant's evidence as to the events of 15 March was peculiar as identified above,and should be rejected. Further, in line with Mule v R [2005] HCA 49 exculpatory statements not given on oath do not have the same weight as statements against interest. 7. the appellant admits his conduct was "hot"; the finding is it was intimidatory and harassing, and intentionally so. 8. as for (2) above. 9. it was not clear if this point was being made, but if it was it should be rejected. Even a person who genuinely thought a particular type of person needed to be educated, that does not render this conduct other than a breach of s13. 10. as for (5) above. Further, the analysis of the evidence by both the magistrate and on appeal results in the first complainant's evidence being accepted. No ground was made on her version in cross examination, and her version had the support of Andrew Wise. 11. the evidence of the first complainant was of the appellant speaking in a loud voice. The version of the appellant given in his interview as to how he spoke the word "bitch" is rejected. Even if that be wrong, the word was spoken at a time of the appellant raising his voice, and to utter this as he said he did would not in any event render the event non intimidatory. 16 March 1. This case is what might on one view (prior to the introduction of the knife) be termed a fairly low level incident of violence. It has its unusual features not the least of which is the seeming coincidence of the second complainant just happening to notice the appellant the following day. Perhaps also unusually the second complainant chose to follow the appellant for some 20 km by which time the appellant had become aware that he was being followed and I would find on the facts was concerned as to why that was so; he stated alarm bells were ringing. It was said in submissions without dispute that that is why he parked other than in his own driveway for he did not want his follower to know which house was his. Even at that point there would seem to be a number of options open to the appellant other than getting out of his car equipped with a knife even if he did not at that very moment of exiting the car have formed the intention to use it. For example he could have driven to the police station and go nowhere near his house. Or indeed he could have gone and knocked on the door of his neighbour or for that matter he could have actually entered his own home. That said it could also be seen as being reasonable to approach the person who had been following him to determine what the issue was. 2. At [1] above the issue in this appeal as to the events of 16 March was said to relate to the "second limb" of the self defence issue. As will be seen below, and based on what has been set out above, the appellant fails on that issue. Yet as noted at [16] above, there is a challenge by the prosecution to the assertion of the appellant that he feared for his life. Whilst the focus of these reasons concerning 16 March has been on that "second limb", my own view of the appellant's version of events is that it should not be relied on; see at [37] above. I note the magistrate has no advantage of seeing the appellant give evidence. The consequence of that is it is necessary to then look at the prosecution case to determine the first limb. There is no evidence of the appellant fearing for his life once his version is rejected. For all the same reasons as set out below concerning the second limb, I find that the appellant did not believe it was necessary to use the knife in his defence, a conclusion I am comfortably satisfied of where the basis of the appellant's case, that he feared for his life, is rejected. If that conclusion is wrong, then due to the outcome as to the "second limb" issue, the appeal still fails. 3. Not long after s418 took its present form, Justice Howie in Katarzynski [2002] NSWSC 613 said: 22 The question now posed for the jury, where there is evidence raising self-defence, is not the same as it was at common law after Zecevic v DPP and as it was considered in Conlon. The questions to be asked by the jury under s 418 are: (i) is there is a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself; and, (2) if there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them. 23 The first issue is determined from a completely subjective point of view considering all the personal characteristics of the accused at the time he or she carried out the conduct. The second issue is determined by an entirely objective assessment of the proportionality of the accused's response to the situation the accused subjectively believed he or she faced. The Crown will negative self-defence if it proves beyond reasonable doubt either (i) that the accused did not genuinely believe that it was necessary to act as he or she did in his or her own defence or (ii) that what the accused did was not a reasonable response to the danger, as he or she perceived it to be. 24 The issue as to the reasonableness of the accused's response is objective in so far as the jury is not concerned with what the accused believed was necessary to respond to the circumstances as he or she perceived them to be. The current provision is not concerned with whether the accused's belief as to what was the necessary response was a reasonable one or whether he or she had reasonable grounds for that belief. This is where the current provisions are in contrast to the position at common law: the accused need not have reasonable grounds for his or her belief that it was necessary to act in the way he or she did in order to defend himself or herself. It is sufficient if the accused genuinely holds that belief. 1. The magistrate was not satisfied the Crown established beyond reasonable doubt that the accused did not think it was necessary to act as he did. The magistrate then found the prosecution had established beyond reasonable doubt that there was not a reasonable possibility that the accused believed his conduct was necessary. As Howie J put it at [23] of Katarzynski it was accepted that the prosecution established beyond reasonable doubt that "what the accused did was not a reasonable response to the danger, as he or she perceived it". 2. The argument of the appellant is that as he was in fear of his life, then to strike out with a knife was a reasonable response to the danger as he perceived it. Where that argument breaks down is because of the evidence, which the magistrate accepted, that the second complainant said to the appellant that if he stopped hitting him he would let him up. In other words one way of ending the fight was to desist yet the appellant did not and continued lashing out with the knife. There was no argument put and sensibly so perhaps as to what might be an area of some imprecision as to what blows were thrown at what stage of these interactions. 3. This conclusion that it was open to the appellant to end the fight by desisting, accepting if you like the second complainant's truce offer, is supported not just by the evidence of the second complainant; it is entirely on all fours with what was witnessed by Andrew from the car, by what Andrew both heard and saw. 4. The appellant's argument takes no account of the offer of the second complainant to desist. This is not a situation where it has been argued that it was some ruse on the part of the second complainant to get the appellant to desist so as to then further assault him; he was in a position to do that already by being on top of him. In any event there is no supporting evidence to otherwise make out such an argument had it been made. That the appellant thought he was a "goner", does not mean that it is reasonable to stab his assailant when the assailant pauses his attack, and even moreso, on the finding of the magistrate, which I would also make, where the appellant did say "stop hitting me and I'll let you go". That finding is supported by the evidence of the second complainant that he said it, and the evidence of Andrew Wise of hearing words to that effect. The appellant at the time those words were spoken was underneath the second complainant, far closer than Andrew Wise, and would certainly have heard those words spoken. 5. That it was not a reasonable response to use the knife is also apparent by virtue of the fact the second complainant did not know he had been stabbed until after the appellant had got away from him. That is, the appellant was able to disengage from the second complainant by hitting him, and making his escape. True it is that it happened by using the knife, but the knife aspect of that hitting was of no significance at that time in that the second complainant did not realise he had been stabbed. Simply put, the appellant was able to get away without the benefit of the knife wounds. In other words the stabbing was not necessary. 6. Even allowing for the possibility that the appellant did not hear "stop hitting me and I will let you go", the evidence of Andrew Wise is that he saw his father pause in his engagement with the appellant, and yet the appellant continues. Thus the evidence is of the second complainant pausing. In those circumstances, and where there injuries inflicted are minimal, and where there is no weapon, it is simply not reasonable to use a knife in the way the appellant did. 7. The appellant again relies on the Liberato direction, as he did for the intimidation count. In terms of the second limb of the self defence issue, this amounts to saying that if what the appellant is saying might be true, then the charges should be dismissed. That is, that he feared for his life and using the knife was a reasonable response. When all the evidence is taken into account the version of events being asserted by the appellant should be rejected for the same reasons as just outlined, and not the least of which is that the appellant's version does not address the fact of the second complainant pausing in the fight and offering to end hostilities. The appellant's version is that there were no such words spoken and no such pause; the evidence shows that is not so, and should be rejected. 8. The points sought to be made by the appellant as to the events of 16 March were identified at the beginning of these reasons. The results of those points are dealt with above, but in summary are, by reference to the numbers in parentheses: 1. (7) the conclusion reached takes into account the circumstances as perceived by the appellant, which has been found by the magistrate, and on appeal, to include that there was an opportunity offered to end the fighting. It might also be noted that no argument was put seeking to distinguish between the use of the knife before or after that point of the engagement. 2. (7a) the version of the appellant here being asserted has been rejected as not taking into account the offered opportunity to end the fight. Further, as noted above, the facts show the fight was able to be ended without the use of the knife. 3. (7b) As noted above, the presumption being referred to was a finding of fact, which if not plainly made, is made now for the reasons stated above. 4. (13) and (14) The reasons for rejecting the appellant's version are detailed above. Order 1. Appeal dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 June 2024