Alan Leslie Cotterill v R; Alan Peter Cotterill v R

The charge of affray

1. Section 93C of the Crimes Act provides as follows: "93C Affray (1) A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years. (2) If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1). (3) For the purposes of this section, a threat cannot be made by the use of words alone. (4) No person of reasonable firmness need actually be, or be likely to be, present at the scene. (5) Affray may be committed in private as well as in public places.
2. Section 93D of the Crimes Act provides as follows: "93D Mental Element under sections 93B and 93C (2) A person is guilty of affray only if the person intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence."
3. The elements of the offence of affray are: 1. That the accused used or threatened to use unlawful violence towards another person; and 2. The conduct of the accused was such as would cause a person of reasonable firmness present at the scene to fear for his/her personal safety.
4. The mens rea for the offence, pursuant to s 93D(2) of the Crimes Act requires the Crown to prove that the person intended to use or threaten violence or was aware that his or her conduct may be violent or threaten violence.

Background to the offending

1. The evidence established that the first appellant, Alan Leslie Cotterill, had attended at the Shelly Beach Golf Club on 5 November 2013 at 1:52 pm. It was Melbourne Cup Day and he was at the club with a friend, Mr Barry Speares. CCTV footage of the lounge area in the club established that at approximately 8.15pm, Mr Cotterill was the subject of a violent attack by one Matthew Montgomery, following which, Mr Cotterill was escorted by a security person employed at the club towards the exit. In the course of leaving the club, Mr Cotterill was shown to be subject to a further attack by Matthew Montgomery and his father, Greg Montgomery.
2. The appellant left the premises, whilst the Montgomery group (comprising Greg, Matthew and Blake, and possibly two other unidentified men) returned to the lounge area.
3. The evidence relied upon by the Crown to establish the offence of affray includes the CCTV footage exposed from 9:03:22 seconds when a group of men arrived at the club, comprising the two appellants, K Cotterill, C Horseman and Z Patterson ("the Cotterill group"). The evidence established that that group walked in single file, with Alan Peter Cotterill leading, and Alan Leslie Cotterill last in line, through the foyer of the club and then into the lounge area. The Montgomery group were seated at a table adjacent to the entrance to the poker machine room. At 9:03:49, Alan Peter Cotterill was shown to be walking past that table, but turned to his right towards the poker machine area with the other four members of the Cotterill group following. At 9:03:50, Alan Leslie Cotterill was observed to come into view and raise his left hand towards the Montgomery table, following which, Alan Peter Cotterill left the poker machine area and appeared to lift his right arm as he approached the Montgomery group, to place it on a chair, at which point, Matthew Montgomery picked up a chair, threw it at Alan Peter Cotterill, who deflected it with his right arm. At the same time, a violent confrontation broke out between the rest of the Cotterill group and the Montgomery group. That confrontation removed itself from the lounge towards the entrance of the club and then into the car park. Towards the end of that confrontation, Alan Leslie Cotterill was subjected to a violent attack by Matthew Montgomery, first by means of blows to his head and, secondly, by kicking him in the midriff, thereby causing him to fall backwards down the front stairs where, fortunately, his fall was broken by two of the Cotterill group. At the same time, Alan Peter Cotterill was seen to be retreating from an attack by another member of the Montgomery group.
4. The learned Magistrate had before him the CCTV footage in exhibit A6. That footage showed four quadrants and was therefore difficult to follow. Exhibits 1A and 1B, being the CD and USB, showed the CCTV evidence more clearly.
5. The appellants challenge factual findings made by the learned Magistrate based on the CCTV footage and the following findings made by the learned Magistrate: 1. That the Cotterills went back to the club with a view to extract revenge on the Montgomery group. 2. That the bulk of the behaviour of the Montgomery group was reactive to a conflagration caused by the Cotterill group. 3. That threats of unlawful violence were constituted by the Cotterill group when they arrived and the behaviour in particular of Alan Peter Cotterill when he moved to pick up a chair.
6. Mr T Healy of learned Counsel, who appeared on behalf of both appellants, submitted that the elements of the offence of affray had not been made out and the Crown had not proved the requisite mens rea for the offence. Further, it was submitted that each of the appellants acted in self‑defence at relevant times during the incident, and that the Crown had not negatived self‑defence as required by s 419 of the Crimes Act.
7. In order to determine those matters, it is necessary to set out the evidence upon which the Crown relies.

Evidence in the Crown case

1. Exhibits A1 to A12 included statements of attending police officers, the disks of the CCTV footage referred to above (exhibit A6), the disk of the record of interview of the first appellant, together with transcript (exhibit A7) and various photographs. It was submitted on behalf of the appellants that the best evidence in relation to the evidence was contained in the reconstructed CCTV footage contained within exhibit 1A. That was conceded by the Crown and certainly the CCTV footage when viewed by means of exhibit A6, was somewhat difficult to follow.
2. The police evidence established that when asked to make a statement the day following the incident, the first appellant declined, as he was entitled to do so. However, on 24 February 2014, a record of interview was conducted with the first appellant. In answer to question 7 of that record of interview (exhibit A7), he gave an account of attending the club on Melbourne Cup Day and being subjected to a violent assault. After leaving the club, he told the police: "And then I realised I didn't have my keys and I wanted to get the bloke's name and see the manager …"
3. He was then asked what happened and he gave the following answer: "As soon as I come through that door, the blokes just got out the chairs, taken shirts off, picking up chairs, I moved myself somewhere but I can't remember where. Then the next minute I copped a kick straight in the, straight in the guts from one of the boys. Pretty big bugger too. I got caught just before I fell down the, went down the stairs, as they pushed me back I started throwing punches. Started throwing punches and we, we worked our way to the door and we tried to leave and they, they just kept coming and coming. We got down to the car and they were all around the car and they're trying to pull me out …"
4. The first appellant could not remember any argument or incident leading to the first assault on him. He was asked as follows: "Q63: Okay. I put it to you that you've returned to the club to engage in an, an, assault, to fight with the other males involved in the earlier incident. What can you tell me about that? A: Well I didn't go there at all to do that because two things, alright. I can't run, I've got bad shoulders, I need two knee replacements, I just feel like I got hit in the head with a hammer and also with me left eye, I've got wires all in it and I've had me, had three broken cheek bones and a fractured skull at the same time. It's all wired up. Why would I feel like fighting anybody? And like I said they shouldn't have even been there. Because I remember when I've ever had a fight in a hotel there, two minutes flat and then I've getting carted off and I've got to prove that I was a person in the right, years ago. Q64: So do you recall who was in the club with you at that time? A: No, not really. Q65: Have you spoken to your son Alan in relation to this matter? A: No, not really. I hardly ever see him now. So …"
5. The first appellant went on to agree that he entered the club with his son Alan, the second appellant, but could not remember the three others with them.
6. It was established that the first appellant had been taken to hospital by ambulance. The ambulance officers noted a laceration to his forehead, swelling to the left temple and behind his left ear. The patient denied any loss of consciousness and stated that he had been assaulted by three to four assailants. On admission to Wyong Hospital, he was found to have a Glascow Coma Scale score of 15, nil loss of consciousness, a laceration to his forehead and pain behind his left ear and was affected by alcohol.
7. It was common ground that the best evidence of what occurred on 5 November 2013 was contained in exhibit 1A. The whole incident occurred between 9:03:22 pm, when the Cotterill group arrived at the club, and 9:05:41, when the Cotterill group drove away from the club car park. Relevant evidence relating to the charges of affray, however, occurred in less than one minute and 30 seconds. During that period of time a fight involving a very significant degree of violence took place between the two groups, involving eight people as found by the learned Magistrate. It commenced when the Cotterill group entered the lounge area, behind the table occupied by the Montgomery group, when there was, depicted on the CCTV footage, what appeared to be a spontaneous and contemporaneous outbreak of violence between all members of the groups.

Submissions of the Appellants

1. Learned Counsel submitted on behalf of the second appellant that it was clear from the CCTV footage that when Matthew Montgomery lifted a chair above his head and threw it at the second appellant at 9:03:53, what then occurred was sufficient to constitute self-defence by the second appellant. It was submitted that there was mens rea required for the offence as proscribed by s 93D(2) of the Crimes Act, namely, that the onus was on the Crown to establish beyond reasonable doubt that the second appellant intended to use or threatened to use violence, and that that mens rea was not established. In respect of the learned Magistrate's reasons, it was submitted that when the first appellant was shown raising his left arm and pointing towards the Montgomery group, there was no evidence to establish the learned Magistrate's finding that that was a clear indication that he was indicating to younger members of his group that the Montgomery group were being identified as those who assaulted him. It was submitted that there was no evidence before the learned Magistrate of what was said, and that an innocent explanation for the first appellant's conduct is available. When the second appellant picked up the chair, his was a defensive position. He did not do anything with the chair and used it only in self-defence. The Crown had not negatived self-defence and in accordance with the test in R v Katarzynski [2002] NSWSC 613 at [23], the Crown had not proved beyond reasonable doubt: 1. That the appellant did not genuinely believe that it was necessary to act as he did in his own defence, or 2. That what the appellant did was not a reasonable response to the danger as he perceived it to be.
2. It was submitted that the learned Magistrate had erred in finding that "as a consequence of that behaviour (meaning the first appellant raising his arm to indicate the Montgomery group), that the second appellant immediately walks towards Matthew Montgomery." It was submitted that that was not proven as an established fact as there was no line of sight between the second appellant and Matthew Montgomery at the time the first appellant was shown to be lifting his left arm.
3. It was submitted that a second error made by the learned Magistrate was his finding that CCTV footage established that the second appellant was the first person to pick up a chair. It is clear from the evidence that it was Matthew Montgomery who picked up a chair and threw it at the second appellant. Further, the learned Magistrate erred, it was submitted, in his finding that it could not be said that the second appellant's behaviour was reactive to a chair being thrown at him.
4. It was further submitted that once the conflagration had moved to the entrance area of the club, that it was clear that the second appellant was using an umbrella in self-defence against an attack upon him by one of the Montgomery group. Indeed, it was submitted that as the second appellant retreated from the situation, he was pursued into the car park by members of the Montgomery group.
5. It was submitted that the learned Magistrate's observation, "that the Montgomery's level of violence is, it must be said, horrific to behold" (sic), was correct, however, the following finding of the learned Magistrate was submitted to be incorrect: "So while the behaviour of the Montgomery's can be said to be ferocious without question, it seems to me the bulk of that behaviour is reactive to a conflagration caused by the Cotterill group."
6. It was submitted that the first appellant had suffered, as a result of the earlier assault and the violent attack upon him, the subject of these proceedings, a very significant head injury and therefore any account of his in relation to the matter must be seen in the light of those injuries and their effect upon him.
7. It was submitted that the finding made by the learned Magistrate that the Coterill group went back to the club with a view to exact revenge in respect to the Montgomery group was not consistent with all of the evidence in the matter concerning the loss by the first appellant of his keys, and the evidence of Mr Spears and other witnesses called on his behalf in relation to those keys.
8. It was submitted that there must be reasonable doubt as to the reason why the Cotterill group entered the club as a result of that evidence and therefore the Crown case fails.
9. It was submitted on behalf of the first appellant that the CCTV footage of him "pointing with his arm" does not of itself mean anything. It was equally open to the Magistrate to find that he was pointing to "the last place where he had his keys".
10. It was submitted that the mens rea required, pursuant to s 93D(2) of the Crimes Act, was not established in respect of the first appellant.
11. After the brawl in the lounge area, the CCTV footage showed the first appellant being led out of the club and that Matthew Montgomery, who was not restrained by security personnel, moved towards him and threw out his left hand. It was only then that the first appellant threw a punch towards him. That action was in his own self-defence and what followed was a vicious attack on him. It was submitted in those circumstances the Crown could not prove the offence pursuant to s 93C(1) of the Crimes Act as mens rea was not established. Otherwise, it was clear that the Crown had not disproved self-defence and the appeal should be upheld and the charges dismissed.

Crown submissions

1. The Crown relied on a detailed written outline of submissions. There was no dispute between the parties as to the legal principles to be applied in an appeal pursuant to the Crimes (Appeal and Review) Act 2001, the principles relating to the law of affray and an offence pursuant to s 93C of the Crimes Act, nor the principles of law applicable where self-defence is raised as a defence. The Crown submissions summarised in a detailed fashion the evidence of the four club employees called in the Crown case and that of Constable Davidson. That evidence included the first appellant telling Constable Davidson when he was asked, if he wanted to make a statement, the following words, "No, I will deal with it myself."
2. The Crown submissions highlighted the CCTV footage where the Cotterill group entered the club, led by the second appellant. Mr Hemsworth attempted to stop them from entering the main lounge area and the second appellant can be seen to raise his right hand towards Mr Hemsworth in a "shooing" motion. The Crown highlighted the hand gesture made by the first appellant as the group walked into the lounge area, following which, the second appellant walked towards Matthew Montgomery when it was submitted "both men take possession of chairs and a melee ensues".
3. It was submitted on behalf of the Crown that the evidence established that both the appellants had the requisite mens rea for the offence of affray. The learned Magistrate rejected the defence relied on by the appellants that the recovery of the first appellant's keys was the predominant reason for their presence at the club. Rather, the evidence established that their motive was revenge and that they willingly engaged in a conflict with the Montgomery group. Their actions upon entry into the club demonstrated that intention. It was submitted that self-defence was not available as a defence to the appellants where the evidence established clearly that once inside the lounge, they engaged willingly in combat and could not be said to be acting in self‑defence. It was a combat that they lost.
4. The Crown focused on inconsistencies in the record of interview of the first appellant (exhibit A7) and his evidence. Those inconsistencies concerned his evidence about the following matters: 1. What he did when he left the club on the first occasion? 2. What was said when he rang his son to come to his place? 3. Why he didn't ask the doorman for his keys? 4. His reason for extending his arm upon entry to the lounge area (for example, his evidence that he was "calling his son back"). 5. The evidence that following the event he made no enquiries whatsoever about his lost keys.
5. It was submitted that the first appellant's evidence was rife with inconsistencies and his account as to what occurred was reconstructive in nature, given his injuries. The Crown submitted that the finding by the learned Magistrate that the first appellant's evidence was unreliable was justified.
6. In relation to the evidence of the second appellant, the Crown submitted that his evidence relating to the conversation held with his father, namely, "that he come around and see him", was highly unlikely. His evidence that he was very upset was noted, however, it was submitted that his evidence that their purpose in going to the club was to get his father's keys was just implausible.
7. It was submitted by the Crown that there was no discussion about the whereabouts of his father's keys in the club, however, that submission was withdrawn when it was pointed out that the evidence established that the second appellant's father had told him that he had been in the pokies room.
8. It was submitted that the evidence established that he did not return following the incident to obtain the keys and that he lied to the police.
9. It was submitted by the Crown that the learned Magistrate's finding that the second appellant was an unreliable witness was justified. It was submitted that the reasons proffered by him for returning to the club were implausible and that the only available inference to the learned Magistrate was that the Cotterill group returned for the purpose of revenge.
10. On the issue of self-defence, the Crown submitted that the evidence did not establish that either of the appellants had the belief set out in s 418(2) of the Crimes Act. The demeanour of the Cotterill group as depicted on the CCTV footage as they entered the club was entirely inconsistent with any genuine attempt to ascertain the whereabouts of the first appellant's keys.
11. It was submitted that the learned Magistrate's finding that the Cotterill group realised in the lounge area that they were outmanned, and started to retreat, was available on the evidence and, further, his finding that their retreating behaviour from the entrance of the club to the car park did not form part of the offence of affray, as proved against them, was open to him on the evidence.

Determination

1. Having reviewed all of the evidence and in particular, the CCTV evidence on a number of occasions, I do not accept the submission made on behalf of the appellants that the learned Magistrate erred by finding that the second appellant was the first person to pick up a chair. It is clear from the learned Magistrate's reasoning that he was not entirely convinced of that "in fairness to the accused". However, he went on to find that the second appellant's evidence that he deflected a chair that was thrown at him before he made any move to pick up a chair, was false. The learned Magistrate did not hold that that was a deliberate lie and took into account that the circumstances arose very quickly. The learned Magistrate was correct in finding that it could not be said that the second appellant's behaviour was reactive to a chair being thrown at him.
2. I also reject the submission that the action of the first appellant in raising his left arm to point at the Montgomery group was open to an inference that he was merely indicating where his keys were. The learned Magistrate was correct in finding that he was indicating the Montgomery group.
3. The fact that there was no evidence of what was said at any time, does not mean that there is an innocent explanation available exculpatory of the appellants. In fact, the first appellant clearly had a impaired recollection of what in fact occurred, both in respect of the earlier incident and the subject offence. The Montgomery's were not called as witnesses and the court is not entitled to speculate about that. However, evidence of what was said is not required to allow the court to make findings based on the CCTV evidence.
4. On the whole of that evidence, I am satisfied, as was the learned Magistrate, beyond a reasonable doubt, that the Cotterill group returned to the club with a view to extracting revenge on the Montgomery group because of the earlier attack on the first appellant. The learned Magistrate was also correct to find the Montgomery group's behaviour was reactive to the conflagration caused by the Cotterill group.
5. At common law, affray was a continuing offence involving a violent disturbance of the peace by one or more persons, in public or private, and in circumstances that a bystander of reasonable firmness of character might reasonably be expected to be terrified. To establish the offence pursuant to s 93C of the Crimes Act, the Crown must prove beyond reasonable doubt the elements set out in [9] of this judgment above, namely, the use or threatened use of unlawful violence towards another person and conduct such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety.
6. Further, s 93D(2) of the Crimes Act requires proof beyond reasonable doubt of an intention to use or threaten violence or an awareness that the accused's conduct may be violent or threatened violence.
7. Having regard to the evidence and, in particular, the manner in which the Cotterill group entered the club as depicted in the CCTV footage, the immediate engagement with the Montgomery group once they entered the lounge area after the first appellant indicated to them the Montgomery group, I find that the elements are established beyond reasonable doubt and that both appellants had the requisite intention as required by s 93D(2) of the Crimes Act.
8. As the defence of self-defence was raised by both appellants, the Crown has the onus pursuant to s 419 of the Crimes Act to negative self‑defence. The relevant sections provide as follows: "418 Self-defence-when available (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence." (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person … and the conduct is a reasonable response in the circumstances as he or she perceives them. "
9. Section 419 of the Crimes Act provides that: "In any criminal proceedings in which the application of this division is raised, the prosecution has the onus of proving beyond reasonable doubt that the person did not carry out the conduct in self-defence."
10. The questions to be considered by a jury if self-defence is raised are as follows: 1. Is there a reasonable possibility that the appellant believed that his conduct was necessary in order to defend himself?; and 2. If there was, is a reasonable possibility that what the appellant did was a reasonable response to the circumstances as he perceived them?
11. The Crown has the onus of negativing self-defence by proving beyond reasonable doubt either: 1. The appellant did not genuinely believe that it was necessary to act as he did in his own defence, or 2. That what the appellant did was not a reasonable response to the danger as he perceived it to be.
12. In Colosimo and Others v Director of Public Prosecutions [2006] NSWCA 293, Hodgson JA (with whom Handley and Ipp JJA agreed) set out the principles applicable in a case involving self-defence at [19] as follows: "(1) By reason of the onus of proof provided by s 419, all that is needed to raise self-defence is evidence capable of supporting a reasonable doubt in the mind of the tribunal of fact as to whether the prosecution has excluded self‑defence. Thus, in relation to s 418(1)(a) there needs to be evidence capable of indicating a reasonable possibility of a belief by the accused that the conduct constituting the offence was necessary to defend himself or herself or others, and of a perception of circumstances such that the accused's response was reasonable. However, the evidence must be capable of doing this as a matter of legitimate reasoning and not mere speculation. (2) It is not essential that there be evidence from the accused as to the accused's beliefs and perceptions. Evidence of circumstances from which inferences may be drawn as to the accused's relevant beliefs and perceptions may be sufficient. However, if the accused does not give evidence of his or her beliefs and perceptions, then generally in the absence of other evidence suggesting the contrary, inferences have to be drawn on the basis of what beliefs and perceptions a person in the position of the accused could reasonably hold in the circumstances. (3) The defence may succeed even though the conduct to which the accused responds is lawful; but if this conduct is lawful, then this is relevant to whether the accused could have believed it was conduct in respect of which defence was necessary, or which threatened an unlawful deprivation of liberty; and relevant also to whether the accused's conduct could have been a reasonable response in the circumstances as the accused perceived them. (4) A finding that an accused 'wanted to fight' does not of itself exclude self-defence; but is relevant to whether the accused could have believed his or her conduct to be necessary for defence or to prevent unlawful deprivation of liberty. Furthermore, if a person believes that any risk of harm can be dealt with by withdrawing, then generally that belief would be inconsistent with a belief that conduct of the nature of an assault was necessary for defence."
13. In R v Katarzynski [2002] NSWSC 613, Howie J said: "22 The question now posed for the jury, where there is evidence raising self-defence, is not the same as it was at common law after Zecevic v DPP and as it was considered in Conlon. The questions to be asked by the jury under s 418 are: "(1) Is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself; and (2) If there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them. 23 The first issue is determined from a completely subjective point of view considering all the personal characteristics of the accused at the time he or she carried out the conduct. The second issue is determined by an entirely objective assessment of the proportionality of the accused's response to the situation the accused subjectively believed he or she faced. The Crown will negative self-defence if it proves beyond reasonable doubt either: (i) That the accused did not genuinely believe that it was necessary to act as he or she did in his or her own defence, or (ii) That what the accused did was not a reasonable response to the danger, as he or she perceived it to be."
14. In accordance with the authorities set out above, in assessing whether the Crown has negatived the defence of self-defence in respect of the two charges, I have to take into account the whole of the surrounding circumstances.
15. That evidence demonstrates that at the time the Cotterill group entered the lounge area, from the moment the first appellant raised his arm in the direction of the Montgomery group, the appellants were intent on engaging that group in either violence or the threat of violence. There is no reasonable possibility that either of the appellants believed at that time that his conduct was necessary in order to defend himself. Following that point in time, there was no reasonable possibility that what each of the appellants did was a reasonable response to the circumstances as he perceived them. They engaged the Montgomery group in a very violent, physical confrontation that took place almost spontaneously and escalated to a level which was, in accordance with the learned Magistrate's finding, "horrific to behold". It was a conflagration in which the Cotterill group came off second best, and very quickly retreated or attempted to retreat from.
16. To the extent that that retreat was demonstrated on CCTV footage at the front of the club premises, the first appellant, whilst being escorted from the club, moved towards Matthew Montgomery at the same time that person moved towards him, and both threw punches almost simultaneously. The second appellant, at the same time, was using an umbrella to fend off another of the Montgomery group. Neither action established that they were acting in self‑defence, rather, their conduct in entering the club and initiating the conflict established that they wanted to fight, and whilst that does not of itself exclude self-defence, it is relevant to the belief they held at all relevant times that what they were doing was necessary for their defence. I find that it was not but, rather, they were the initial aggressors.
17. By so finding, the court does not in any way condone the action of any person involved in this horrific incident. It demonstrated a capacity in all parties involved to take the law into their own hands, to expose members of the public to a very real level of fear of danger and injury to themselves, without regard to the consequences of doing so.
18. I therefore find that the offence against both appellants is established and I dismiss the appeals.

Order

1. I order as follows: 1. The appeal in each case is dismissed. 2. Confirm Magistrate's Orders, convicting each appellant of the offence of affray.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2015