Citation: Giddings v Director of Public Prosecutions [2008] NSWSC 169
Court: Supreme Court of New South Wales, Common Law Division
Date: 6 March 2008
Judge(s): James J
Background
The appellant was the sole director and shareholder of a company that owned a hotel in Waterloo/Redfern. His son was the hotel's licensee. On the evening of 28 August 2006, a woman aged around 60 entered the hotel, sat down, and declined to order anything. After she made comments that disturbed the licensee, both men asked her to leave. She refused.
The appellant threw the woman's jacket outside the hotel to encourage her departure. When she still did not leave, he threw approximately one litre of water over her, soaking her clothing. She eventually left the hotel voluntarily some time later.
The appellant was charged with assault in the Local Court. He was convicted and fined $1,000. He appealed to the Supreme Court on the basis that his conduct was justified as a reasonable response to the complainant's refusal to leave, relying on the self-defence provisions of the Crimes Act.
Legal Issues
- Whether the Magistrate erred in law by finding that throwing water on the complainant could not cause her to be "turned out" of the licensed premises, effectively ruling it out as a reasonable response.
- Whether the Magistrate failed to take into account the complainant's gender, age, and physical frailty when assessing what constituted a reasonable response to her refusal to leave.
- Whether the self-defence provision in s 418(2) of the Crimes Act was correctly applied, including both its subjective belief component and its objective reasonableness component.
- A notice of contention was also filed by the DPP, raising an alternative basis on which the conviction could be upheld.
Decision
James J dismissed both grounds of appeal. On the first ground, the court found that the Magistrate had not in fact ruled out throwing water as an acceptable response on a categorical basis. Rather, the Magistrate had applied the two-step test under s 418(2) of the Crimes Act: first finding, in the appellant's favour, that he subjectively believed his conduct was necessary; and then finding, to the criminal standard of proof, that the conduct was not objectively a reasonable response in the circumstances perceived.
The Magistrate's conclusion that throwing water could not cause the complainant to be turned out was treated as a factual finding supporting the objective unreasonableness of the conduct, not a legal misdirection. On appeal, counsel for the appellant did not press a challenge to that factual finding, which was fatal to the first ground.
On the second ground, James J found no demonstrated error. Although the Magistrate did not expressly mention the complainant's gender, age, or physical frailty, the court inferred that these matters were taken into account. The Magistrate had noted counsel's argument that throwing water involved less force than physically handling the complainant, and had found in the appellant's favour on the subjective limb of the test. Those conclusions, the court reasoned, were only explicable if the Magistrate had engaged with the reasons the appellant advanced, including those relating to the complainant's physical characteristics.
James J also concluded, in dealing with the notice of contention, that the Magistrate had made a finding of fact to the criminal standard that the appellant had used more than reasonable force. Given that finding, and the appellate concession that it could not be successfully challenged, the conviction was sound regardless of how the self-defence provisions were technically framed.
Orders Made
- Appeal dismissed.
Key Takeaways
- Under s 418(2) of the Crimes Act, a person acts in self-defence only if they subjectively believed their conduct was necessary and that conduct was objectively a reasonable response to the circumstances as they perceived them. Both limbs must be satisfied.
- A licensee or hotel owner has a power to remove trespassers from licensed premises, including by reasonable force, drawing on both the Liquor Act s 103 and common law principles confirmed in cases such as Harrison v Duke of Rutland (1893).
- In dismissing the appeal, the Supreme Court confirmed that a Magistrate need not expressly address every mitigating factor raised by a defendant, provided the judgment as a whole permits an inference that those matters were considered.
- No error was established by pointing to language in the Magistrate's judgment suggesting a single "acceptable response" existed; the court read that language in context as a factual conclusion rather than a legal misdirection.
- Factual findings made by a Local Court to the criminal standard of proof are difficult to dislodge on a law-only appeal under s 52 of the Crimes (Appeal and Review) Act 2001, and a failure to press a challenge to such findings on appeal can be decisive.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 418(2)
- Liquor Act (NSW), s 103
- Inclosed Lands Protection Act (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 52, 53
- Anti-Discrimination Act 1977 (NSW)
- Director of Public Prosecutions Act (NSW), s 9
- Intoxicating Liquor (Licensing) Act 1872 (UK)
- Victorian Police Offences Act 1928
Cases:
- Harrison v Duke of Rutland (1893) 1 QB 142
- Darcey v Pre-term Foundation Clinic [1983] 2 NSWLR 497
- Director of Public Prosecutions v Butterworth (unreported, Supreme Court NSW, 6 November 1996)
- Howell v Jackson (1834) 6 C & P 725; 172 ER 1435
- Sealey v Tandy [1902] 1 KB 296
- Webb v Epstein (1955) VLR 462