Citation: Doran v Director of Public Prosecutions; Brunton v Director of Public Prosecutions [2019] NSWSC 1191
Court: Supreme Court of New South Wales
Date: 11 September 2019
Judge(s): Simpson AJA
Background
The three plaintiffs were young men aged 18 or 19 who had spent New Year's Eve 2017 drinking heavily at a residential property on the NSW South Coast. In the early hours of 1 January 2018, a dispute over allegedly stolen bicycles escalated into a violent melee between the plaintiffs and a group of adult men from a neighbouring address. One of those men had entered the plaintiffs' home and physically assaulted two teenagers before being forcibly ejected.
After a lengthy 15-day hearing, the Local Court magistrate dismissed most charges but convicted each plaintiff of affray. The magistrate rejected their self-defence claims. He sentenced each plaintiff, and those sentences were not challenged on appeal.
Each plaintiff then appealed to the Supreme Court under s 52 of the Crimes (Appeal and Review) Act 2001 (NSW), which permits appeals on questions of law alone. The plaintiffs framed their ground of appeal as the magistrate having incorrectly excluded self-induced intoxication from their self-defence claims.
Legal Issues
- Whether, in assessing the second limb of the self-defence test under s 418 of the Crimes Act 1900 (NSW), a tribunal of fact must or may take into account the accused's intoxication when evaluating whether their response was reasonable in the circumstances as they perceived them.
- Whether the magistrate erred in law by excluding evidence of the plaintiffs' intoxication from that reasonableness assessment.
- In the separate Brunton proceedings: whether the magistrate impermissibly used evidence of one plaintiff's conduct and state of mind from before the main confrontation when determining guilt of affray.
Decision
Section 418 of the Crimes Act creates a two-part test for self-defence. The prosecution must prove beyond reasonable doubt either that the accused did not genuinely believe their conduct was necessary for a protective purpose, or that the conduct was not a reasonable response in the circumstances as the accused perceived them. The second limb is objective: it asks whether the response was objectively reasonable, assessed against the circumstances as subjectively perceived by the accused.
Simpson AJA confirmed that the "reasonable response" component of s 418 is an objective test. A defendant's intoxication is relevant to the first limb insofar as it may inform what the accused actually believed, but it does not lower or modify the objective standard of reasonableness required by the second limb. Allowing intoxication to inform that objective standard would distort the test by permitting a drunken accused to be measured against a correspondingly impaired standard of reasonableness, which the legislation does not contemplate.
On that basis, the magistrate committed no error of law. His treatment of the plaintiffs' intoxication was consistent with the correct legal approach, and the Supreme Court found no identifiable misdirection or misapplication of the statutory test.
On Mr Brunton's additional ground, Simpson AJA found that the magistrate had not impermissibly used pre-confrontation conduct to establish guilt of affray. The magistrate referred to Mr Brunton's own account of his earlier state of mind purely as context for explaining his later behaviour, and he made clear that the affray finding rested on conduct after the confrontation began. No error of law was demonstrated on that ground either.
Orders Made
Proceedings 2018/387743 (Doran and Weeks):
- Time for filing extended to 17 December 2018
- Summons dismissed
- Plaintiffs to pay the defendant's costs
Proceedings 2019/13069 (Brunton):
- Time for filing extended to 14 January 2019
- Summons dismissed
- Plaintiff to pay the defendant's costs
Key Takeaways
- Under s 418 of the Crimes Act 1900 (NSW), the self-defence test has two distinct components: a subjective belief limb and an objective reasonableness limb. Intoxication is only capable of informing the first limb.
- The "reasonable response in the circumstances as the accused perceived them" is an objective standard. A defendant's self-induced intoxication does not modify or lower that objective measure of reasonableness.
- No error of law was established where a magistrate excluded the accused's intoxication from the reasonableness assessment while taking it into account, where relevant, in considering what the accused believed.
- A magistrate does not err by referring to a defendant's pre-incident state of mind to contextualise and explain their later conduct, provided that reference does not substitute for a proper analysis of the conduct forming the subject of the charge.
- An appeal under s 52 of the Crimes (Appeal and Review) Act 2001 (NSW) is confined to questions of law alone; arguments that effectively challenge factual findings or the weight given to evidence will not satisfy that threshold.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 418, 419, Pt 11 Div 3
- Crimes Amendment (Self-defence) Act 2001 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW), s 52
- Supreme Court Rules 1970 (NSW), Pt 51B.6
Cases:
- Colosimo v Director of Public Prosecutions (NSW) (2005) 64 NSWLR 645; [2005] NSWSC 854
- Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293
- Douglas v R [2005] NSWCCA 419
- McCullough v R [1982] Tas R 43; (1982) 6 A Crim R 274
- R v Conlon (1993) 69 A Crim R 92
- R v Katarzynski [2002] NSWSC 613
- Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645; [1987] HCA 26