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District Court 24 November 2023

Rose v R

[2023] NSWDC 519

Assault & violencePublic order & justice offences

Citation: Rose v R [2023] NSWDC 519
Court: District Court of NSW
Date: 24 November 2023
Judge: Scotting DCJ

Background

The appellant was convicted of affray in the Wyong Local Court following an altercation at a caravan park in Long Jetty on 24 January 2022. The incident arose from an ongoing dispute between the appellant and another man (referred to in the judgment as Simon) over an alleged debt and the use of a boat without consent. The two had exchanged words at a pub earlier that day before the confrontation escalated at the caravan park.

As the appellant drove slowly past Simon's caravan, Simon and his partner approached the vehicle. Simon grabbed the appellant's shirt through the window and tried to forcibly pull him from the moving vehicle. The appellant drove approximately 150 metres before stopping. He then got out of the vehicle carrying a shifting spanner behind his back, pushed Simon's partner to the ground, and left the scene.

The magistrate convicted the appellant of affray. The sole issue on appeal was whether the prosecution had established beyond reasonable doubt that the appellant was not acting in self-defence.

  • Whether the magistrate erred in finding that the prosecution had negatived self-defence under s 418 of the Crimes Act 1900
  • Whether the appellant's belief that his conduct was necessary to defend himself was reasonably possible in the circumstances
  • Whether the appellant's response was objectively reasonable given the circumstances as he perceived them

Decision

Scotting DCJ identified two errors in the magistrate's reasoning. First, the magistrate had assessed the appellant's conduct in isolation rather than considering the full background and context of the altercation. Second, the magistrate reasoned that the response was unreasonable simply because leaving the scene would have been a more objectively reasonable option. Under the self-defence framework in R v Katarzynski, the reasonableness of a response is assessed against the circumstances as the accused perceived them, not against what an objective observer might have preferred.

The District Court accepted the magistrate's positive credibility findings about Simon and his daughter Bradie, but noted no adverse credibility finding had been made against the appellant. Working from that evidentiary foundation, Scotting DCJ identified four reasons why the prosecution had not negatived self-defence beyond reasonable doubt.

Simon was the aggressor, having struck the appellant and tried to pull him from a moving vehicle. Simon did not deny threatening the appellant, was intoxicated, and continued to run toward him even after the vehicle had driven away. When the appellant stopped and got out, he faced at least three people running toward him. There was also a significant inconsistency in the evidence about what the appellant did with the shifting spanner: Bradie described him waving it in the air, probably as a warning or in self-defence, while Simon said he did not brandish it at all. The court was not satisfied beyond reasonable doubt that the appellant swung the spanner at anyone.

Taking the evidence as a whole, Scotting DCJ was not satisfied that the prosecution had proved beyond reasonable doubt that the appellant was not acting in self-defence. The appeal was allowed and the conviction set aside.

Orders Made

  • Appeal allowed
  • Conviction and penalty imposed by the magistrate set aside

Key Takeaways

  • Under s 418 of the Crimes Act 1900, the prosecution negatives self-defence by proving beyond reasonable doubt either that the accused did not genuinely believe defensive action was necessary, or that the response was not objectively reasonable given the circumstances as the accused perceived them.
  • A court assessing self-defence must consider the full context and background of an altercation. Analysing the accused's conduct in isolation, without regard to prior threats and a sustained aggressor, constitutes error.
  • The existence of a theoretically safer option (such as leaving the scene) does not, by itself, render an accused's chosen response unreasonable. Reasonableness is assessed against the danger the accused subjectively perceived, not against the calmest available alternative.
  • Where evidence about a central factual matter (here, how the spanner was wielded) is materially inconsistent between prosecution witnesses, a finding adverse to the accused on that point may not be available beyond reasonable doubt.
  • On a s 18 Crimes (Appeal and Review) Act 2001 appeal, the appellate judge must demonstrate error before intervening, but the prosecution retains the onus of establishing guilt beyond reasonable doubt throughout. Requiring the appellant to show error does not reverse that onus.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 418 (self-defence)
- Crimes (Appeal and Review) Act 2001 (NSW), s 18 (appeal by rehearing on transcript)

Cases
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Charara v R [2006] NSWCCA 244
- Fox v Percy (2003) 214 CLR 118
- Gianoutsas v Glykis [2006] NSWCCA 137
- Lumney v Director of Public Prosecutions [2021] NSWCA 186
- McNab v Director of Public Prosecutions [2021] NSWCA 298
- R v Conlon (1993) 69 A Crim R 92
- R v Katarzynski [2002] NSWCCA 613
- R v Viro (1978) 141 CLR 88