Davis v Bennett [2003] NTCA 7

PARTIES:	DAVIS, STUART AXTELL

	v

	BENNETT, STEPHEN KENNETH
  
TITLE OF COURT:	COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:	APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURSIDICTION

FILE NO:	AP12 OF 2002 (20108999)

DELIVERED:	4 April 2003

HEARING DATES:	21 March 2003

JUDGMENT OF:	MARTIN CJ, MILDREN & RILEY JJ

CATCHWORDS:

Statutes:

Criminal Code ss. 1, 23, 132, 187, 188(1), (2)(k)
Justices Act s 163(3)

Cases:

Beckwith v The Queen (1976) 135 CLR 569 at 576, referred to
Charlie v The Queen (1999) 199 CLR 387 at 394, referred to 
King v Adams (1935) 53 CLR 563 at 567-8, referred to
Secretary, Department of Health and Community Services v JWB & SMB (Marion’s case) (1991-92) 175 CLR 218, referred to
Secretary v The Queen (1996) 5 NTLR 96 at 104, referred to

Criminal law – Assault – Definition of assault – Application of force – whether application of force causing injury or personal discomfit necessary to constitute assault 

REPRESENTATION:

Counsel:
	Appellant:	J. Karczewski QC
	Respondent:	S. Cox

Solicitors:
	Appellant:	Office of the Director of Public Prosecutions
	Respondent:	Northern Territory Legal Aid Commission

Judgment category classification:	B
Judgment ID Number:	ril0309
Number of pages:	17

ril0309

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Davis v Bennett [2003] NTCA 7
No. AP12 OF 2002 (20108999)

	BETWEEN:

	STEPHEN AXTELL DAVIS
	Appellant

	AND:

	STEPHEN KENNETH BENNETT
	Respondent

CORAM:	MARTIN CJ, MILDREN & RILEY JJ

REASONS FOR JUDGMENT

(Delivered 4 April 2003)

MARTIN CJ:

[1]	For reasons advanced by Mildren and Riley JJ, I agree that the appeal should be allowed and join in the order that the matter be remitted to a single Judge of the Supreme Court to deal with the other issues which remain outstanding.  I appreciate that this line of reasoning leads to the word “and” being treated as if it were “or”, but whether the word “and” was a mistake or was intended to denote an alternative as between the words preceding and succeeding it, I am satisfied that the purpose of the legislation was to distinguish between two separate circumstances under which force can be applied for the purposes of the definition of assault.
MILDREN J:
[2]	This is an appeal from Gallop AJ dismissing an appeal by the complainant from the Court of Summary Jurisdiction.  The respondent was charged with unlawfully assaulting one Luke Taylor contrary to s 188(1) of the Criminal Code.  Mr Taylor was a security guard at the Casuarina Square shopping centre.  He and another security guard, Mr Bakunowicz, had followed the respondent after having received information that the respondent had stolen some goods from a store.  Mr Taylor gave evidence that he positioned himself in front of the respondent and asked him what he was doing.  His evidence was that the respondent replied, “Get the fuck out of my way”, and that the respondent then hit him with both hands on the chest.  Mr Taylor then identified himself as “security” and said to the respondent, words to the effect, “We believe you might have stolen this tracksuit” (the tracksuit that the respondent was wearing).The respondent then hit him again by pushing through him and Mr Bakunowicz.  
[3]	The other security guard, Mr Bakunowicz, gave evidence that the respondent used a two handed push against Mr Taylor using open hands against Mr Taylor's chest.  
[4]	The learned Magistrate made no findings as to the evidence, but on the assumption that the respondent placed open hands against Mr Taylor and pushed him in the chest, found that the prosecution had failed to establish its case for two reasons.  First, in order for the two handed push to Mr Taylor to amount to an assault, his Worship found that the application of force had to be such as to cause injury or personal discomfort to Mr Taylor and there was no evidence of this.  Secondly, his Worship found that the two handed push for the purpose of pushing Mr Taylor aside so that the respondent could make good his exit was capable of being, and in fact was reasonably needed, for the common intercourse of life.
[5]	On the hearing of the appeal before Gallop AJ, his Honour held that the definition of the term “application of force” in s 1 of the Code, was capable of the interpretation relied upon by the respondent; that it is a “well known principle of interpretation of criminal law that if one is to be visited with the sanctions of the criminal law, the legislation or the law has to be clearly laid down and have a very clear and unequivocal meaning”; that the construction which the learned Magistrate applied to the definition was open and indeed, was probably correct, and in those circumstances the appeal should be dismissed.
[6]	His Honour did not deal with the second question raised by the appeal before him which was whether on the facts which the learned Magistrate assumed, the learned Magistrate was right in holding that such a push was reasonably needed for the common intercourse of life.
[7]	The prosecutor appeals to this Court on the ground that the construction arrived at by the learned Magistrate was wrong in law.  Although initially indicating to the Court that the appellant, if successful, did not seek a remitter to the Court of Summary Jurisdiction or to the Supreme Court and would be satisfied with a pronouncement from this Court as to the correct construction to be given, the appellant's counsel eventually invited us, in the event that the appeal is successful, to remit the matter to the Supreme Court to determine the second question raised by the appeal to the Supreme Court and not dealt with by Gallop AJ.  
The Legislation
[8]	Section 188(1) of the Criminal Code provides:
Any person who unlawfully assaults another is guilty of an offence and, if no greater punishment is provided, is liable to imprisonment for one year.  
[9]	Section 187 of the Code relevantly provides:
In this Code “assault” means –
(a)	the direct or indirect application of force to a person without his consent ...; or
(b)	the attempted or threatened application of such force where the person attempting or threatening it has an actual or apparent present ability to effect his purpose and the purpose is evidenced by bodily movement or threatening words,
	other than the application of force -
(c)	when rescuing or resuscitating a person ...
(d)	in the course of a sporting activity where the force used is not in contravention of the rules of the game; or
(e)	it is used for and is reasonably needed for the common intercourse of life.
[10]	Section 1 of the Code defines “unlawful” or “unlawfully”, to mean “without authorisation, justification or excuse”.
[11]	Section 23 of the Code provides that:
A person is not guilty of an offence if any act, omission or event constituting that offence done, made or caused by him was authorised, justified or excused.
[12]	The expression “application of force” is defined in s 1 of the Code as follows:
In this Code, unless the contrary intention appears –
….”application of force” and like terms include striking, touching, moving and the application of heat, light, noise, electrical or other energy, gas, odour or any other substance or thing if applied to such a degree as to cause injury or personal discomfort.
[13]	The central question raised by this appeal was therefore whether the words “if applied to such a degree as to cause injury or personal discomfort”, qualify the words “striking, touching, moving”, as well as the words appearing after the expression “and the application of heat ...”.
[14]	The argument of the appellant is based on a number of considerations.  First, it is pointed out that it is clear from s 187(b) that an assault can be committed without there being any application of force whatsoever.  This is clearly so as the definition of “assault” includes the attempted or threatened application of force.  Nevertheless, it was submitted on behalf of the respondent that the “force” in s 187(b) must be such that if it were effected it would cause injury or discomfort.  It was submitted that such discomfort might be the emotion of fear, disgust, embarrassment or shame and that personal discomfort can be inferred and can be delayed, especially in the case of an indecent assault where the victim was asleep at the time of being touched.
[15]	Before considering this contention, I think it is necessary to observe that we are here dealing with the definition of “application of force” which is an expression used in the definition of “assault”.  The definition of “assault” in s 187 is obviously intended to be exhaustive, whilst the definition of “application of force”, because it uses the word “include” is probably not meant to be exhaustive.
[16]	The expression used in s 187(b) is “the attempted or threatened application of such force”.   As to the respondent's contention interpreting this to mean the attempted or threatened striking or touching “to such a degree as to cause injury or personal discomfort” I think that this  overlooks the words in the definition of “application of force”, “if applied to such a degree”.  In my view, those words must relate back to the words “the application of heat, light, noise, electrical or other energy, gas, odour or other substance or thing”.  It is difficult to see how in ordinary language a striking could be “applied to such a degree as to cause injury or personal discomfort”.  It is not so much that a striking may not cause injury or personal discomfort; the difficulty is that in ordinary language one does not speak of “striking” being "applied…”.
[17]	The next submission of counsel for the appellant, is that it was recognised by the High Court in Secretary, Department of Health and Community Services v J W B & S M B (Marion's case) (1991-92) 175 CLR 218, that any physical contact or threat of it was prima-facie unlawful under the provisions of the Northern Territory's Criminal Code.
[18]	At pages 232-233, Mason CJ, Dawson  Toohey  and Gaudron JJ, after referring to the definition of “assault” in s 187 of the Code and to the provisions of ss 188 and 181 of the Code said:
The corollary of these provisions, which embody the notion that, prima facie, any physical contact or threat of it is unlawful, is a right in each person to bodily integrity.  That is to say, the right in an individual to choose what occurs with respect to his or her own person.  In his Commentaries, Blackstone wrote:
[T]he law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner.
Consent ordinarily has the effect of transforming what would otherwise be unlawful into accepted, and therefore acceptable, contact.  Consensual contact does not, ordinarily, amount to assault ... the absence of consent is irrelevant in a lawful arrest or in circumstances which amount to self-defence.  A further exception of this kind is reflected in Collins v Wilcock, where it was said that in respect of physical contact arising from the exigencies of every day life – jostling in a street, social contact at parties and the like  – there is an implied consent “by all who move in society and so expose themselves to the risk of bodily contact”, or that such encounters fall, “within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life”.
Their Honours did not specifically refer to paragraph (e) of the definition of “assault” in s 187 of the Code.
[19]	I consider that their Honours' observations gives force to the appellant's submission, although it may be said that their observations are obiter and are of general application.  
[20]	The next submission of the appellant is that it is because the merest touching can constitute the offence of assault, that the Code in s 187(e) excuses from the definition of “assault” the application of force that is used for and is reasonably needed for the common intercourse of life.  This was of course consistent with the view of the majority in Marion's case; but as I understood the argument, there would be no need for the exception if it were necessary for the Crown to establish injury or personal discomfort in every case.  There is considerable force in this argument.
[21]	On the other hand, counsel for the respondent submitted that there is no logical reason why it is necessary for there to be injury or personal discomfort as the result of the application of heat, but such a consequence is not required as the result of a mere touching.   The respondent submitted that personal discomfort is a very low test and the construction which the appellant favours invites petty incidents being the subject of criminal charges with the defendants being forced to establish that the application of force was used for and was reasonably needed for the common intercourse of life.
[22]	There is force in the respondent's submissions.  The explanation may lie in the fact that the concept of “the application of force” by including things like the application of heat, light, noise, electrical or other energy, gas odours, etc,  extended what might have been the ordinary notion of the application of force.  To take the application of heat, light or noise as examples, these are normal experiences for every human and it is therefore reasonable to require that the application of such properties be of such a kind as to cause injury or personal discomfort before potentially amounting to an assault.  
[23]	I think the correct approach to the resolution of this problem is to begin by remembering that we are dealing here with the interpretation of a Code.
[24]	In Charlie v The Queen (1999) 199 CLR 387 at 394, Kirby J, after referring to his decision in The Queen v Barlow (1997) 188 CLR 1 at 31-33 in which his Honour collected the applicable principles, said:
“... it is erroneous to approach the meaning of a code with a presumption that Parliament's purpose was to do no more than re-state the pre-existing law.  The first loyalty, as it has been often put, is to the code.  Where there is ambiguity, and especially in matters of basic principle, the construction which achieves consistency in the interpretation of like language in similar codes of other Australian jurisdictions will ordinarily be favoured.  But before deciding that there is ambiguity, the code in question must be read as a whole.  The operation of a contested provision of a code, or any other legislation cannot be elucidated by confining attention to that provision.  It must be presumed that the objective of the legislature was to give an integrated operation to all of the provisions of the code taken as a whole, and an effective operation of provisions of apparently general application, except to the extent that they are expressly confined or necessarily excluded.”
[25]	The definition of “application of force” cannot therefore be read except in the context of the Code as a whole.  That definition applies not only to s 187, but also to ss 27 and 28 of the Code.  I do not consider that either the interpretation contended for the appellant, or that contended for by the respondent, is ruled out by a consideration of those provisions.  Furthermore, as I previously observed, the words “application of force” appear within the definition of the word “assault” in s 187 and the word “assault” is to be found in many sections of the Code, including ss 125(c),  132(1), 162(2)(b), 188, 189A, 190, 191, 193, 212 and 310.  
[26]	One of the problems with the respondent's contention would relate to proof of an indecent dealing with a child under 16 years contrary to s 132 of the Criminal Code.  Obviously with very young children, it may be very difficult for the Crown to establish that a touching of a child caused any personal discomfort to the child if the child is of very tender years.  Another problem relates to indecent assaults under s 188(1), (2)(k), where the victim of the indecent assault was at the relevant time asleep.  The respondent answers this contention by suggesting that personal discomfort can be delayed; in other words, it would be sufficient proof of the personal discomfort if the victim were to say that she or he felt embarrassed when she or he found out about it afterwards.  It is true that there is no requirement of exact temporal immediacy in order for there to be cause and effect.  However, I think there is ample protection in the provisions from frivolous and petty claims by the requirement of lack of consent and the fact that application of force used for and reasonably needed for the common intercourse of life is expressly excluded.
[27]	In the result, I prefer the construction contended for by the appellant.  The respondent submitted that the provision was ambiguous and that accordingly the submission of the appellant should be rejected, relying upon what fell from Rich, Dixon, Evatt and McTiernan JJ in the King v Adams (1935) 53 CLR 563 at 567-8:
“No doubt, in determining whether an offence has been created or enlarged,  the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category.”
[28]	But as Gibbs J observed in  Beckwith v The Queen (1976) 135 CLR 569, at 576 the rule is perhaps one of last resort.
[29]	In the instant case I consider that by applying the ordinary rules of statutory interpretation the contentions of the appellant are to be preferred.  I would therefore allow the appeal.  I would further order that the matter be remitted to a single Judge of the Supreme Court to deal with the other issues which still remain outstanding.
RILEY J:
[30]	Since preparing these reasons in draft I have received a copy of the reasons for judgment of Mildren J.  The circumstances surrounding the matter are fully set out in those reasons and I will not repeat them.
[31]	For my purposes it is sufficient to note that on 18 June 2001 the respondent was found not guilty in the Court of Summary Jurisdiction of two counts of assault.  In so finding the learned stipendiary Magistrate failed to make any relevant findings of fact but rather concluded that even if the factual circumstances as alleged by the Crown were established findings of not guilty would result.  He reached this conclusion having made two rulings of law namely:
(i)	for the alleged two-handed push by the respondent upon Mr Taylor to amount to an assault the application of force had to be such as to cause injury or personal discomfort to Mr Taylor and
(ii)	any two-handed push that did occur was reasonably needed for the common intercourse of life.
[32]	The present appellant appealed to the Supreme Court pursuant to s 163(3) of the Justices Act where he was unsuccessful.  An appeal was then made to this court.  The appeal to this court is limited to the correct interpretation of the definition of “application of force” in the circumstances of an assault contrary to s 188 of the Criminal Code.  By virtue of s 187 of the Criminal Code “assault” means: 
“(a)	the direct or indirect application of force to a person 
	without his consent or with his consent if the consent is obtained by force or by means of menaces of any kind or by fear of bodily harm or by means of false and fraudulent representations as to the nature of the act or by personation; or 
(b)	the attempted or threatened application of such force where the person attempting or threatening it has an actual or apparent present ability to effect his purpose and the purpose is evidenced by bodily movement or threatening words,
other than the application of force – 

(c)	when rescuing or resuscitating a person or when giving any medical treatment or first aid reasonably needed by the person to whom it is given or when restraining a person who needs to be restrained for his own protection or benefit or when attempting to do any such act; 
(d)	in the course of a sporting activity where the force used is not in contravention of the rules of the game; or 
(e)	that is used for and is reasonably needed for the common intercourse of life.”

[33]	The expression “application of force” is then defined, in s 1, to 
“include striking, touching, moving and the application of heat, light, noise, electrical or other energy, gas, odour or any other substance or thing if applied to such a degree as to cause injury or personal discomfort”.
[34]	The debate before this court focused upon whether or not the requirement that the force be of “such a degree as to cause injury or personal discomfort” applied to the whole of the definition or only to the words “and the application of heat, light, noise, electrical or other energy, gas, odour or any other substance or thing”.  
[35]	The appellant contended that the qualification applied only to the application of heat, light, noise, electrical or other energy, gas, odour or any other substance rather than to the whole of the definition.  The appellant referred to s 187 of the Criminal Code in which the term ‘assault’ is defined as set out above and argued that an assault can be committed without there being any application of force whatsoever.  That is made clear by reference to s 187(b) of the Code.  
[36]	It was submitted by the appellant that it would be a “strange result” if an assault alleged to have been committed by the direct or indirect application of force required proof of injury or personal discomfort given that an assault alleged to have been committed by the attempted or threatened application of force can be proved without there being any interference with or discomfort to the victim whatsoever.  There is some force in this argument.
[37]	Reference was made by the appellants to Marion’s case (Secretary, Department of Health and Community Services v JWB & SMB) (1991-1992) 175 CLR 218 at 233) and to Secretary v The Queen (1996) 5 NTLR 96 at 104.  In Marion’s case our attention was drawn to the observations of the majority (Mason CJ, Dawson, Toohey and Gaudron JJ) regarding the nature of “assault” for the purposes of the Criminal Code. Their Honours said (at 232-233) that the “corollary of these provisions, which embody the notion that, any physical contact or threat of it is unlawful, is a right in each person to bodily integrity.”  These observations were clearly obiter dicta but insofar as they address the issue they lend support to the submission of the appellant.
[38]	It is the further submission of the appellant that the definition deals with two quite separate notions.  The first is that of “striking, touching, moving”, all of which involve the underlying notion of physical contact with the victim by observable means.  The second notion relating to “the application of heat, light, noise, electrical or other energy, gas, odour or any other substance or thing” is of a quite different character.  It may be thought that the application of force of the types referred to under the second notion, and which may be encountered in everyday life, call for further qualification before they are made unlawful. The structure of the definition and in particular the inclusion of the words “and the application of” after the word “moving” lend some support to this submission. 
[39]	On the other hand the respondent submits that the alternative construction placed on the definition by the learned stipendiary Magistrate and also by Gallop A/J on appeal is one that is open to be made and an onus rests upon the appellant to establish error.  It is pointed out that penal statutes have always been construed strictly and where a meaning is “vague or cloudy” a statute ought not to be construed as extending any penal category: R v Adams (1935) 53 CLR 563 at 567-8; R v Beckwith (1976) 125 CLR 569 at 576.  However, it must be noted that Gibbs J in Beckwith described this as a “rule of last resort”. 
[40]	In Charlie v R (1999) 199 CLR 387 Kirby J said at 394:
“The first loyalty, as it has often been put, is to the code.  Where there is ambiguity, and especially in matters of basic principle, the construction which achieves consistency in the interpretation of like language in similar codes of other Australian jurisdictions will obviously be favoured.”
[41]	I note that the interpretation suggested by the appellant is consistent with the definition that applies in the Queensland Criminal Code and in the Criminal Code of Western Australia.  In those codes the relevant definitions employed similar terminology to that found in the Northern Territory Code but the definitions are differently structured.  They are in a form that makes it clear that the qualification that the force be of such a degree as to cause injury or personal discomfort to another is limited to the notion of applying heat, light, electrical force, gas odour or any other substance of thing.  
[42]	Considering the words of the definition taken in their context suggests the interpretation contended for by the appellant is to be preferred.  There is no need to qualify the word “striking” by reference to injury or personal discomfort.  The word itself suggests at the very least the causing of some personal discomfort.  Further, the idea that some “touching” may constitute an assault without the need for the victim to suffer injury or personal discomfort is to be found in the offence of indecent assault created by s 188(2)(k) of the Criminal Code.  As the appellant points out such an offence may occur by touching where the victim is asleep and feels no personal discomfort or is a young child who is unable to communicate personal discomfort.  If the interpretation is otherwise than suggested by the appellant such a person would not be afforded the protection of the law from such conduct.  I do not think it is an answer to suggest, as the respondent did, that personal discomfort may be felt when the victim awakes and learns what has happened.  Whilst that may be so in some cases, where it is not so the law should nevertheless be regarded as intending to protect the victim from such conduct.  
[43]	In my opinion the interpretation proposed by the appellant is to be preferred.  I agree with Mildren J that the appeal should be allowed and I agree with the orders that he proposes.

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