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Westlaw AU Hall v Fonceca

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[1983] WAR 309

Hall v Fonceca Jump to: Court: Judges: Judgment Date:

» Headnote » Judgment Supreme Court of Western Australia Wallace J, Smith J, Kennedy J

Jurisdiction: Citations:

Australia (Western Australia) [1983] WAR 309

Legal Representatives:

R S French, for the appellant.; I L K Marshall, for the respondent.

Headnote

Supreme Court of Western AustraliaFull Court Hall v Fonceca 8 March, 20 May 1983 Trespass — Assault — Provocation — Self-defence — Elements of defence of self-defence — Reasonable apprehension of physical contact — Need to prove intent of assailant — Criminal Code ss 222, 247, 248 In a civil action of assault where the Criminal Code defence of self- defence is relied upon the defendant is required to prove that there was an intention on the part of the plaintiff either to use force or to create in the defendant an apprehension of immediate physical contact, such intention being an element of assault as defined in s 222 of the Criminal Code. Cases Cited Cases referred to:Warren v Coombes (1979) 53 ALJR 293 Brady v Schatzel [1911] St R Qd 206

at 30; MacPherson v Brown (1975) 12 SASR 184 [1969] 1 QB 439

; R v Howe (1958) 100 CLR 448

; Tuberville v Savage (1699) 1 Mod 3 ; 86 ER 684

; R v Venna [1976] QB 421

at 188-9, 199-200, 212; Fagan v Commissioner of Metropolitan Police

v Mclver (1928) 22 QJPR 173 -; Fogdon v Wade [1945] NZLR 724

at 728. ; Police v Greaves [1964] NZLR 295

[1969] 2 All ER 856 ; Rosza v Samuels [1969] SASR 205 -; Marwey v R (1977) 138 CLR 630 ; Gronow v Gronow (1979) 54 ALJR 243

; R v Julien

; Voulis v Kozary (1975) 7 ALR

; Trevey v Grubb (unreported, HC, 17 Dec 1982); Taylor v Johnson

(unreported, HC, 23 Feb 1983); Edwards v Noble (1971) 125 CLR 296

; Uranerz (Aust) Pty Ltd v Hale (1980) 54 ALJR 378

Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192

; Whitely Muir and Zwanenberg Ltd v Kerr (1966) 39

ALJR 505

;

; Logdon v DPP (1976) CrLRev 121 ; Bruce v Dyer (1966) 58 DLR (2d) 211 ; R

Other cases cited by counsel:R v Everingham (1949) 66 WN (NSW) 122

126

; R v Dale [1969] QWN 30

; Wood v Bowron (1866) LR 2 QB 21

;

.

Appeal R S French, for the appellant. I L K Marshall, for the respondent. Judgment

Cur. adv. vult. Wallace J. This appeal arises out of the dismissal by the learned trial judge of the appellant's claim for damages arising out of an assault committed upon him by the respondent at the Mount Lawley Harlequin Hockey Club on 5 July 1979. As a result of the assault and the subsequent fall to the floor the appellant suffered grievous head injury. By his defence the respondent admitted the assault but contended that it was committed in necessary self-defence using no more force than was reasonably necessary in the circumstances. Particulars provided in that regard are as follows:— “(a)

the plaintiff first assaulted the defendant by raising both hands in a threatening manner so as to cause the

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[1983] WAR 309

(b)

defendant to fear an imminent attack; prior to the actual assault the plaintiff was behaving in an aggressive and highly provocative manner towards the defendant.”

The learned trial judge after hearing evidence from both parties and their supporting witnesses upheld the respondent's defence. The short facts are that both the appellant and respondent were members of the Harlequin Hockey Club and after training on the night of 5 July 1979 had a few drinks together. A discussion arose over the finances of the club in the course of which it clearly developed that the appellant adopted an abusive and aggressive attitude towards the respondent. In his Honour's words it then followed that:— “The defendant [respondent] rose from his chair and warned the plaintiff [appellant], telling him to ‘watch it’. The defendant at the same time shook his finger at the plaintiff who was then turned away from him. The plaintiff turned towards the defendant and the defendant poked his right finger into the plaintiff's left shoulder. The plaintiff raised his left arm and pushed the defendant on the right shoulder at the same time telling him to ‘get away’. The plaintiff's right hand was then behind his back. The plaintiff shook his left hand in front of the defendant's face. The defendant saw that the plaintiff was about to raise his right hand. The defendant apprehended that the plaintiff was about to strike him with his right hand. He swung a blow in the general direction of the plaintiff's head with his right fist. The blow struck the plaintiff somewhere on the left side of his face. To some degree the plaintiff walked into the blow but it was in any case a fairly hard blow. The plaintiff fell to the floor. It was a concrete floor covered only by a thin carpet. The plaintiff hit the back of his head on the floor and suffered the unfortunate consequence of a subdural haemorrhage in the left temporal region of the brain.” His Honour accepted the evidence of the respondent as opposed to that of the appellant. He did however not accept the respondent's evidence that the blow which struck the appellant's head was delivered in order to parry an expected blow from the appellant. Rather was he of the opinion that the respondent's blow was wildly delivered on the spur of the moment and that he did not aim the blow, but directed it intentionally to the region of the appellant's head. Again he did not accept the respondent's evidence that he did not poke the appellant in the shoulder intentionally, but did accept that the appellant turned into the respondent's poking finger. Importantly his Honour found that the respondent was justified in remonstrating with the appellant in the manner he described and in poking his finger, s 247 of the Criminal Code. He further found that the appellant assaulted the respondent unlawfully when he pushed him on the shoulder. His Honour went on to say:— “It is, however not this assault which the defendant [respondent] alleges is the assault against which he used self-defence. The defendant's case in court was that the plaintiff assaulted him by threatening him, and thereby causing him to apprehend immediate and unlawful violence, by making the movement which the defendant took to be preparation for a blow by the plaintiff with his right hand to the defendant. There are two issues here — the fact of threat by the plaintiff and the fact of apprehension by the defendant.” His Honour found the decision which he had to make difficult, identified the test as an objective one and went on to say:— “As to the former I conclude that although the plaintiff did not in fact intend to punch the defendant with his right hand he did move it, and that the plaintiff was by a combination of actions and attitude threatening the defendant in a manner which caused the defendant reasonably to apprehend a further assault.” His Honour then went on to deal with the issue of the force used by the respondent being no more than reasonably necessary to make effectual defence. The first ground of appeal is that the learned trial judge erred in his finding that the conduct of the appellant immediately prior to the assault upon him constituted an assault upon the respondent for the purposes of s 248 of the Criminal Code. For the purpose of his argument Mr French has pointed to the common law definition of assault as consisting of the intentional creation in another person of an apprehension of imminent harmful or offensive contact. See the definition in Fleming on The Law of Torts (5th ed, p 24) and Halsbury (3rd ed) par 1255, vol 38. The definition of an assault within the Code insofar as it is relevant refers to a person who threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose (s 222). It is argued that because his Honour's reasons reveal that the appellant did not in fact intend to punch the respondent with his right

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[1983] WAR 309

hand, he did not address his mind to determine whether the threat made by the appellant was within the s 222 definition, that is, did the appellant possess the intent to cause apprehension in the respondent. If that be so, then of course, it would be necessary for there to be a retrial. It is conceded that the evidence to infer such a finding exists. The answer lies in the manner in which his Honour referred to the “combination of actions and attitude threatening the defendant in a manner which caused the defendant reasonably to apprehend a further assault”. It is a fine argument but in the context of his Honour's finding that the respondent suffered apprehension I am not persuaded that he did not find that necessary element of intent in accordance with particular (a). The final two grounds of appeal are as follows:— “(2)

The learned trial judge erred in his finding that the force used by the respondent was reasonably necessary to

(3)

make effectual defence against such assault as was on his Honour's findings of fact, committed by the appellant. The learned trial judge erred in that he assessed the reasonableness of the respondent's use of force by reference to the respondent's state of mind when he ought to have assessed it against such actual assault as was committed by the appellant.”

On this issue his Honour's reasons reveal: “On my findings, the defendant, on the spur of the moment, expecting a blow, took a swing with his fist in the general direction of the plaintiff's head. It is easy to be wise now, as indeed the defendant is. He had done some boxing as a youth and he could have tried stepping back, ducking, or parrying the expected blow. He took a swing instead. The consequences of the swing were, of course, most unfortunate, but it is the nature of the force used by the defendant which is in question not the consequences. I have come to the conclusion that the force used by the defendant was not more than was ‘reasonably necessary to make effectual defence against the assault’ of the defendant by the plaintiff.” Mr French has argued that as the respondent conceded that it was open to him to retreat, given that he apprehended imminent violence, it was not necessary for him to deliver the blow which had such unfortunate results. He has urged us to look again at the situation for the purpose of drawing inferences from evidence as if this Court was in a Warren v Coombes (1979) 53 ALJR 293 proven facts. With respect I do not think that position is open to this Court. Whether a retreat could or should have been made is merely an element for the jury to consider as entering into the “reasonableness of the conduct of the accused” (see R v Howe (1958) 100 CLR 448 ). In this case his Honour was the jury and he had before him the participants to the assault and all witnesses. In other words he was conscious of the circumstances that prevailed when the confrontation and assault took place. The excerpt from his reasons to which I have referred above shows that he exercised the discretion to which he was entitled in making a finding upon matters of fact. Where the evidence was available to him to reach such a conclusion his opinion is in my opinion unappealable. For these reasons I am not persuaded that the learned trial judge fell into error and therefore this appeal should be dismissed. Smith and Kennedy JJ. The appellant suffered severe injuries on 5 July 1979 when, having been hit a blow on the left side of his face by the respondent, he fell and struck his head on the floor. He instituted proceedings against the respondent, claiming damages for assault. The respondent, by his defence, admitted the assault; but he claimed that it was committed in necessary self-defence, using no more force than was reasonably necessary in the circumstances. This defence was apparently based upon s 248 of the Criminal code, read with s 5 of the Criminal Code Act 1913, and that was how the learned trial judge treated it. The respondent did not seek to rely upon any different rule applying at common law. His Honour dismissed the claim, holding that the respondent had established his defence. The appellant has appealed from that decision, relying upon three grounds:— “(1)

(2)

(3)

The learned trial judge erred in his finding that the conduct of the appellant immediately prior to the assault upon him by the respondent constituted an assault upon the respondent for the purposes of s 248 of the Criminal Code. The learned trial judge erred in his finding that the force used by the respondent was reasonably necessary to make effectual defence against such assault as was, on his Honour's findings of fact, committed by the appellant. The learned trial judge erred in that he assessed the reasonableness of the respondent's use of force by reference to the respondent's state of mind when he ought to have assessed it against such actual assault as

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[1983] WAR 309

was committed by the appellant.” Counsel for the appellant argued that his Honour characterized the relevant threat as a movement of the appellant's shoulder, leading to the sensing on the part of the respondent that a blow was coming and so inducing in his mind an apprehension of immediate and unlawful violence. In the appellant's submission, in the definition of assault there is no room for any requirement of apprehension on the part of the person the subject of the assault. It is, it was said, simply a question of whether or not the person concerned, by any bodily act or gesture, had threatened to apply force of any kind to the person of another. On the other hand, he submitted, the learned trial judge had failed to address his mind to the critical issue of whether the appellant had the required intention to arouse apprehension of physical contact in the mind of the respondent. He conceded that a particular bodily act or gesture can support an inference that the requisite intent existed and so lead to a finding that there was in fact a threat. Before considering whether the learned trial judge did indeed proceed in the manner suggested, it is necessary to refer to the relevant provisions of the Code. Section 248 provides:— “When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended and is not such as is likely, to cause death or grievous bodily harm. If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.” A definition of assault is to be found in s 222 of the Code. For the present purposes, it may be rendered as follows:— “A person … who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.” Section 222 contains no express reference to any particular intention with which the assailant must act, although, clearly, so far as an “attempt” is concerned, it would seem to be obvious enough that an intention on the part of the assailant to apply force is necessarily involved (cf s 4). Furthermore, there can be no assault in the case of an attempt or a threat under the definition unless there is an actual or apparent ability to effect the assailant's “purpose”. It would not normally be realistic to speak in terms of “purpose” in a context such as this without there being an intention on the part of the assailant, although, in the case of a threat, the purpose which the assailant must have, or appear to have, a present ability to effect poses some difficulty, unless it be treated as the purpose conveyed by the threat (cf R v Dale [1969] QWN 30 ). It is generally accepted that the section lays down the common law as understood at the time of enactment of the Code (see, for example, Brady v Schatzel [1911] St R Qd 206 ). At common law, the weight of opinion clearly favours the view that there must be, on the part of the assailant, an intention either to use force or to create an apprehension of the use of force on the part of the person being assaulted. That has not been of recent development. It is unnecessary to consider whether recklessness, where the assailant adverts to the consequence of his conduct, suffices for this purpose, although there is strong support for the view that it does. See generally Russell on Crime (12th ed), p 652; Smith and Hogan, Criminal Law (4th ed), p 353; Tuberville v Savage (1699) at 188-9, 1 Mod 3 ; 86 ER 684 ; Wood v Bowron (1866) LR 2 QB 21 at 30; MacPherson v Brown (1975) 12 SASR 184 199-200, 212; Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439

; R v Venna [1976] QB 421

and Logdon v

DPP (1976) Cr L Rev 121 . As to the necessity for the existence of a relevant intention in order to constitute an assault in the law of tort, see Prosser on Torts (4th ed), pp 40-1; Fleming on The Law of Torts (6th ed), p 24; Restatement of the Law of Torts (2nd ed), par 21 and Linden Canadian Tort Law, p 40; but cf Bruce v Dyer (1966) 58 DLR (2d) 211 ; Salmond on Torts (17th ed), at p 122; 38 Halsbury's Law of England (3rd ed), p 761 and Winfield and Jolowicz on Tort (11th ed), p 51. Although the authorities are surprisingly sparse in this area, we accept that an intention on the part of the assailant either to use force or to create apprehension in the victim is an element in an assault. Macrossan SPJ apparently had no doubt that the relevant intention on the part of the assailant was necessary to constitute an assault under the Code (see R v McIver (1928) 22 QJPR 173 and see also Fogden v Wade (1945) NZLR 724 at 728). The question which then arises is whether the learned trial judge did proceed upon this basis in concluding that there was an

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[1983] WAR 309

assault, or whether he regarded it as being sufficient if there was simply some act of the appellant causing in the respondent reasonable apprehension of the application of force to him, whatever the intention of the appellant may have been. The relevant passage in the judgment is quite short. His Honour said:— “ … I conclude that although the plaintiff did not in fact intend to punch the defendant with his right hand he did move it, and that the plaintiff was by a combination of actions and attitude threatening the defendant in a manner which caused the defendant reasonably to apprehend a further assault. There is a note on this in Winfield and Jolowicz on Tort (11th ed), p 675.” The passage in the text to which his Honour must be taken to have been referring is as follows:— “On the one hand, I am certainly not bound to wait until a threatened blo...