Sutton v Trenerry [1999] NTSC 83

PARTIES:	KENNETH JAMES SUTTON

	v

	ROBIN LAURENCE TRENERRY

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY

FILE NO:	JA102 of 1998 (9705847)

DELIVERED:	16 August 1999

HEARING DATES:	9 August 1999

JUDGMENT OF:	RILEY J

REPRESENTATION:

Counsel:
	Appellant:	T. Young
	Respondent:	R. Noble

Solicitors:
	Appellant:	North Australian Aboriginal Legal Aid Service
	Respondent:	Office of the Director of Public Prosecution

Judgment category classification:	C
Judgment ID Number:	ril99022
Number of pages:	7

ril99022

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Sutton v Trenerry [1999] NTSC 83
No. JA102 of 1998 (9705847)

	IN THE MATTER OF the Justices Act

	AND IN THE MATTER OF an appeal against a decision handed down in the Court of Summary Jurisdiction at Darwin

	BETWEEN:

	KENNETH JAMES SUTTON
	Appellant

	AND:

	ROBIN LAURENCE TRENERRY
	Respondent

CORAM:	RILEY J

REASONS FOR JUDGMENT

(Delivered 16 August 1999)

[1]	On 23 November 1998 the appellant was convicted in the Court of Summary Jurisdiction of unlawfully assaulting Clinton Oats in circumstances where Clinton Oats suffered bodily harm.
[2]	The circumstances of the matter are, generally speaking, not in dispute.  In the early hours of the morning of 17 March 1997 Mr Oats was at a nightclub in Cavanagh Street in Darwin.  He became involved in a disagreement with another patron at the nightclub, a person named Taryn Nobb.  As a consequence both Mr Oats and Miss Nobb were required to leave the premises.  They did so.  There was then a further altercation at the door of the premises.  Thereafter Mr Oats was intending to leave the area and crossed Cavanagh Street to the western side of that street to where his car was parked.  Miss Nobb, who it was said was much larger than Mr Oats, followed him across the road where the altercation continued.  His Worship found that in the course of that occurrence Mr Oats kicked Miss Nobb in the shoulder.  Mr Oats described the process as a “push” rather than a “kick” but his Worship preferred to describe it as a kick.  There was evidence from Mr Oats that Miss Nobb fell to the ground in the course of this incident.
[3]	There is no dispute that the appellant, having seen at least some of the incident that occurred across the road from the nightclub, intervened.  This intervention was described by his Worship in the following terms:
“He saw the argument across the road.  He saw a man and a lady fighting, yelling, slapping, kicking each other.  His evidence seemed to be there is a fair bit of mutuality about that, but hitting each other.  We know that there are other people around.  He seems to have then taken it upon himself to race across and hit Oats from behind.  He went and intervened.  He cannot remember what they were saying, but he says he sung out for the bloke to stop it.  Well, I do not know whether he did or did not, but he certainly, on my appreciation of the evidence, did not stop in (his) tracks to see whether that was going to have any effect.  He went straight across and went whack – he punched.  And I would infer from all the evidence he punched him with quite some force, straight arm to the back of the head whilst they were still arguing.”
[4]	As a consequence of that blow Mr Oats fell to the ground and suffered injury.  The blow delivered by the appellant to his victim can accurately be described as a king hit with a straight arm from behind.
[5]	In his defence the appellant relied upon s 27(g) of the Criminal Code.  That section provides that the application of force to another may be justified “provided it is not unnecessary force and it is not intended and is not such as is likely to cause death or grievous harm” where the use of the force is “to defend one’s self or to defend another”. 
[6]	The case for the appellant was that he was defending Miss Nobb giving rise to a defence under s 27(g).  It was submitted that the onus of disproving justification rested upon the prosecution once the evidence raised the possibility of such a defence: Zecevich v DPP (1987) 162 CLR 645 at 657; Maher v Trenerry (SCNT, unreported, 19 December 1997).
[7]	“Unnecessary force” is defined in s 1 of the Criminal Code to mean:
“Force that the user of such force knows is unnecessary for and disproportionate to the occasion or that an ordinary person, similarly circumstanced to the person using such force, would regard as unnecessary for and disproportionate to the occasion”.  
[8]	A person similarly circumstanced does not include a person who is voluntarily intoxicated.  To the extent that the appellant in this case was intoxicated there was never any suggestion, either before the Court of Summary Jurisdiction or in this Court, that his intoxication was other than voluntary. 
[9]	In determining whether a person has used “unnecessary force” it is necessary to do so “in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection”: Zecevich v DPP (supra at 662); R v Secretary (1996) 131 FLR 124 at 126.
[10]	In dealing with this issue the learned Stipendiary Magistrate had the following to say:
“He did not do what I hold an ordinary man would do, similarly circumstanced, go and intervene.  If you are going to be that kind of hero, and I do not say that in a pejorative manner, but if you are going to go and do that kind of thing, where you have got a larger woman than the man, slapping and having a go at each other.  He went and used that serious degree of force straight away, without waiting to see whether Oats had heard what was said, if he said it, without any physical warning that he was there.  And I am convinced beyond reasonable doubt, if I could put it this way, that an ordinary man similarly circumstanced would not have done what he did to stop that fight.  I am prepared to accept that he went across there to stop the fight, but I am not prepared to accept that an ordinary man similarly circumstanced would have done what he did at all.  We just do not live in such an uncivilised society …”.
[11]	His Worship went on to say:
“So therefore I find that unnecessary force was used, unnecessary force that an ordinary person in similar circumstances would not have used.  It was disproportionate and unnecessary and accordingly, in my view, unlawful.  He never said that he made a mistake about that.  In my view, that mistake was unreasonable.  It was said the mistake was that the scuffle was so trivial it did not need the action he did.  I say that it was unreasonable by him because he did not stop to check at all whether that was the situation”.
[12]	His Worship then went on to hold that the Crown had negatived beyond reasonable doubt the “justification evidence or that which pointed to justification”.  His Worship therefore found the appellant guilty.
[13]	The appellant appealed on five grounds and these were as follows:
“1.	The finding of guilt to the charges was unsafe and unsatisfactory;
2.	the Stipendiary Magistrate erred by giving insufficient consideration to the defence of mistake of fact;
3.	the Stipendiary Magistrate misdirected himself on the credibility of the victim and so the trial miscarried;
4.	the Stipendiary Magistrate misdirected and mislead himself without supporting evidence to be erroneously of the view that the one hit was a “savage” one; and
5.	the Learned Stipendiary Magistrate failed to give sufficient weight to the subjective circumstances of the appellant in the finding that he used unnecessary force.”
[14]	Ground 3 was not developed at the hearing.
[15]	Central to the submissions made by Mr Young on behalf of the appellant was that the situation which confronted the appellant on that night was such that he may have been mistaken as to the nature of the confrontation between Mr Oats and Miss Nobb.  His Worship found that the purpose of the appellant crossing the road was “to stop the fight” and, on one view of the facts, the appellant was motivated by what may have appeared to be a serious assault (ie kicking) upon Miss Nobb.  His Worship should therefore have held a reasonable doubt as to the reasonableness of the response by the appellant.
[16]	Seen in context I am unable to accept this to be so.  His Worship found that there was an interval of some minutes between Miss Nobb being kicked and falling and the blow struck by the appellant.  The appellant did not say that he saw Miss Nobb fall to the ground.  Indeed the uncontradicted evidence was that after Miss Nobb fell the victim moved from one side of the motor vehicle to the other before being struck from behind by the appellant.  When he was struck it was, as his Worship found, a “king hit” which led to the victim, according to one witness, dropping “like a dead man falling”.  At that time the altercation between the victim and Miss Nobb had been at an end for some minutes.  The victim had moved away from Miss Nobb.
[17]	The delay was, according to his Worship, of sufficient length to permit an ordinary man similarly circumstanced to size up the situation.  
[18]	Whatever the situation may have been as perceived by the appellant, and his evidence before the Court of Summary Jurisdiction was far from clear, it cannot have been that there was any immediate threat posed by Mr Oats to Miss Nobb.  The blow, which was struck from behind, was, in the circumstances, quite disproportionate to the situation and was unnecessary.  
[19]	This conclusion is so even taking into account all of the circumstances applicable to the appellant.  His Worship referred to “an ordinary person similarly circumstanced” when discussing whether the appellant used unnecessary force at the relevant time.  In my opinion there was nothing in the subjective circumstances of the appellant that would create any doubt that an ordinary person in his position would regard the force used as unnecessary for and disproportionate to the occasion.  I agree with the conclusion reached by his Worship and find no error in his approach. 
[20]	His Worship’s description of the blow was that it was “savage”.  Given the descriptions of the blow provided to him, and not contradicted by the appellant in his evidence, that description was perfectly justified.
[21]	I dismiss the appeal.

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