Colosimo and Ors v Director of Public Prosecutions

Crimes (Local Courts Appeal and Review) Act 2001 Crimes Act 1900 LEGISLATION CITED : Summary Offences Act 1988 Public Order Act 1986 (UK)

May v O'Sullivan (1955) 92 CLR 654 R v Annakin (1988) 17 NSWLR 202) Anderson v Attorney-General for NSW (1987) 10 NSWLR 198 R v Honeysett (1987) 10 NSWLR 638 Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 R v Downs (1985) 3 NSWLR 312 R v Huynh [2000] NSWCCA 18 R v Eleter [2003] NSWCCA 130 R v Fajka [2004] NSWCCA 166 I v Director of Public Prosecutions (2002) 1 AC 285 Taylor v Director of Public Prosecutions [1973] 2 All ER 1108 Button v Director of Public Prosecutions [1966] AC 591 CASES CITED : Acuthan v Coates (1986) 6 NSWLR 472 Neighbourhood Association DP295386 v Forgeron [2005] NSWCA 150 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Amalgamated Television Services Pty Ltd v Marsden (2001) 122 A Crim R 166 Osland v The Queen (1998) 197 CLR 316 R v Smith [1997] 1 Cr App R 14 R v Mead [2002] 1 NZLR 594 Thomas v The Queen (1959-1960) 102 CLR 584 Vallance v The Queen (1961) 108 CLR 56 R v Filippetti (1978) 13 A Crim R 335 R v Katarzynski [2002] NSWSC 613 R v Burgess and Saunders [2005] NSWCCA 52 R v Nguyen (1995) 36 NSWLR 397

Julius Colosimo, Sergio Colosimo and Vincenzo Colosimo - Plaintiffs PARTIES : Director of Public Prosecutions (NSW) - Defendant

Mr A J Bellanto QC and Mr D Pullinger (Plaintiffs) COUNSEL : Mr P I Lakatos (Defendant)

Bradfield Anderson (Plaintiffs) SOLICITORS : S C Kavanagh (Defendant)

LOWER COURT JUDICIAL OFFICER : Mr C Longley, Magistrate

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CIVIL LIST

12745/2004 Julius Colosimo and Ors v Director of Public Prosections

JUDGMENT 1 JOHNSON J: This is an appeal under s.52(1) Crimes (Local Courts Appeal and Review) Act 2001 ("Appeal and Review Act") by the First Plaintiff, Julius Colosimo ("the First Plaintiff" or "Julius"), the Second Plaintiff, Sergio Colosimo ("the Second Plaintiff" or "Sergio") and the Third Plaintiff, Vincenzo Colosimo ("the Third Plaintiff" or "Vincenzo") arising from the conviction of the Plaintiffs by Mr C Longley, Magistrate, at the Downing Centre Local Court on 28 July 2004 upon charges of affray under s.93C Crimes Act 1900. 2 Following conviction, his Honour fined each of the Plaintiffs the sum of $1,500.00 with an order to pay court costs of $63.00.

The Present Appeal 3 The Plaintiffs have exercised a right of appeal to this Court upon grounds that are said to involve questions of law alone: s.52(1) Appeal and Review Act. The Plaintiffs rely upon a number of grounds of appeal, each of which is said to involve a question of law. In due course, it will be necessary to determine the appeals against conviction and to make orders under s.55(1) Appeal and Review Act.

History of Proceedings in the Local Court 4 The incident which has given rise to this prosecution occurred in the Lagoon Bar within the Star City Casino in the early hours of 18 November 2002. In April 2003, the Plaintiffs were charged with the following offences arising from the incident:

(a) maliciously inflict grievous bodily harm on Alan Bracamonte: s.35(1)(b) Crimes Act 1900 ;

(b) assault occasioning actual bodily harm on Alan Bracamonte: s.59(1) Crimes Act 1900;

(c) assault upon Jason Wood: s.61 Crimes Act 1900 ;

(a) maliciously inflict grievous bodily harm on Alan Bracamonte: s.35(1)(b) Crimes Act 1900 ;

(b) assault occasioning actual bodily harm on Kevin Bannister: s.59(1) Crimes Act 1900;

(c) assault occasioning actual bodily harm on Andrew Heaney: s.59(1) Crimes Act 1900;

(a) assault occasioning actual bodily harm on David Ogston: s.59(1) Crimes Act 1900;

Messrs Bracamonte, Wood, Bannister, Heaney and Ogston were security officers employed at Star City Casino at the time of the incident. 5 On 19 July 2004, a hearing of the various charges commenced before Mr Longley, Magistrate, at the Downing Centre Local Court. All matters were heard together. The hearing occupied eight sitting days from 19 to 28 July 2004. Mr Bellanto QC and Mr Pullinger appeared for the Plaintiffs in the Local Court and also on appeal in this Court. Sergeant Sykes appeared as prosecutor in the Local Court. Mr Lakatos of Counsel appeared for the Defendant at the hearing of this appeal. 6 The prosecution closed its case on 26 July 2004. On 27 July 2004, following submissions, his Honour found no prima facie against the Second Plaintiff upon the s.35(1)(b) charge. His Honour held there was a prima facie case with respect to other counts alleging offences under ss.35(1)(b), 59(1) and 61 Crimes Act 1900. Having made such a finding, however, his Honour invited the prosecutor to address as to whether he could be satisfied beyond reasonable doubt with respect to these other counts (apart from affray). Submissions were made to his Honour at that point as to whether there was a prima facie case on the affray counts (Transcript, 27 July 2004, T20.50-25). His Honour found a prima facie case with respect to the affray counts (T25.57-27.13). Senior Counsel for the Plaintiffs stated that the Plaintiffs would not give evidence and no evidence was called in the defence case. Submissions were then made upon the question whether his Honour should be satisfied beyond reasonable doubt of the guilt of the Plaintiffs: May v O'Sullivan (1955) 92 CLR 654 at 658. Following those submissions (T28-41) his Honour reserved his decision until the next day, 28 July 2004. 7 On 28 July 2004, his Honour gave reasons for determining that he was not satisfied beyond reasonable doubt that the prosecution had established the guilt of any of the Plaintiffs with respect to offences other than the affray counts (T1.39-6.17). His Honour then provided Mr Bellanto QC with a further opportunity to make submissions directed solely to the affray counts and he did so (T6.28-11.39). His Honour then gave reasons which culminated in a finding that he was satisfied beyond reasonable doubt that each of the affray counts under s.93C Crimes Act 1900 had been proved (T11.53-14.25). Following submissions on penalty, each Plaintiff was fined the sum of $1,500.00 and was ordered to pay court costs of $63.00. The Plaintiffs made an application for costs with respect to the charges which were dismissed, but his Honour refused that application on 5 August 2004. The present appeal relates to conviction only, and no appeal is brought with respect to sentence or the refusal to order costs. 8 I shall return to his Honour's reasons for judgment and the grounds of appeal later in this judgment.

The Offence of Affray 9 In New South Wales in the 1980s, a number of incidents occurred which saw persons charged with the common law offences of riot and affray. These incidents included the Viking Tavern, Milperra, shooting in September 1984 (affray: R v Annakin (1988) 17 NSWLR 202) and the Mount Panorama disturbances in April 1985 (riot: Anderson v Attorney-General for NSW (1987) 10 NSWLR 198). 10 An unlawful affray was an indictable common law misdemeanour: Annakin at 214D-E. Likewise, riot was a common law misdemeanour. In Anderson, Kirby P observed at 203E that riot was "an area of the law where the courts do well to leave adaptation of the law to suit suggested modern conditions to Parliament". McHugh J, in Anderson, at 209B-C observed that, despite the antiquity of the offence of riot, the precise elements of the offence were not settled. 11 Against this background, legislation was enacted in 1988 in New South Wales which provided for statutory offences in the area of riot and affray. Part 3A (ss.93A-93E) of the Crimes Act 1900 was enacted. The common law offences of riot and affray were abolished: s.93E. Statutory offences of riot (s.93B) and affray (s.93C) were created. Reference will be made to the terms of these provisions later in this judgment. 12 In the same year, the Summary Offences Act 1988 was enacted which included, in s.28, a summary offence of violent disorder (see now s.11A of that Act). In the course of the Second Reading Speech with respect to the summary offence of violent disorder contained in the Summary Offences Bill 1988, the Attorney-General, Mr Dowd, said with respect to clause 28 of the Bill (Hansard, Legislative Assembly, 31 May 1988, page 804 at 807): "The need for a summary offence akin to riot has been demonstrated by instances of group disorder, particularly among spectators at sporting events. Although there is nothing new about this type of behaviour, the common law offences of riot and affray have proved inadequate to deal with these events. Both riot and affray carry a maximum penalty of life imprisonment and may be charged only on indictment, thereby excluding summary jurisdiction. … A complete review of the common law offences of riot, affray and unlawful assembly is being undertaken by the Criminal Law Review Division, and it is anticipated that a comprehensive code of offences will be introduced into Parliament during the budget session, to complement this offence." 13 That "comprehensive code of offences" was contained in the Crimes (Amendment) Bill 1988. In the course of the Second Reading Speech with respect to that Bill, which included the new Part 3A of the Crimes Act 1900, the Attorney-General, Mr Dowd, said (Hansard, Legislative Assembly, 19 October 1988, page 2600-2601): "Reform of the offences of riot, rout and affray is urgently needed. At present they are common law offences, and as such may only be dealt with on indictment, and carry maximum penalties of life imprisonment. They are offences relevant to public order but because of the onerous limitations imposed procedurally and substantively they are not often charged. For example, in 1985, 95 persons were charged with riot arising out of the Easter Bathurst motor cycle races. Considerable difficulties have arisen in the prosecution of these accused. The maximum penalty for the offences charged is life imprisonment, and there is a consequent inducement for a plea of not guilty. Additionally, the common law position is less settled than it could be if defined by statute. This has had an effect on the prosecution's ability to convince a jury about the guilt of an accused. Consequently several appeals have been made. The financial cost to the State has been enormous. Without mentioning specific cases, various of the committal proceedings are still pending. In the United Kingdom the common law offences of riot and affray have been repealed and replaced with statutory offences. These reforms were based on a number of reports, including the 'Law Commission Report on Criminal Law: Offences Relating to Public Order'. The recommendations of the Law Commission in the United Kingdom sought to retain, for the greater part, the principal features of the structure and application of the common law offences while eliminating any uncertainties and anomalies. This bill will abolish the common law offences of riot, rout and affray. Two new statutory offences of riot and affray are enacted. The offence of rout is not replaced. The common law offence of rout is similar to riot, but without the execution of the common purpose. The dividing line is vague between a rout, which is an act moving towards the execution of a common purpose, and a riot, which is an act done in execution of that purpose. In modern times, rout has not been charged as a separate offence, because a jury could convict a person of rout on an indictment for riot if the complete offence of riot was not proved. The United Kingdom Public Order Act 1986 contains statutory offences of riot and affray. A separate offence of rout was considered unnecessary. The Law Commission took the view that the offence of rout was obsolete and recommended that it should be abolished and not replaced. I agree with this view and, accordingly, the offence is not replaced. The new offence of riot is found in new section 93B. For the offence to be committed, a group of at least 12 persons must use or threaten unlawful violence for a common purpose in a way that would arouse fear in a bystander of reasonable firmness. Each person in the group who intends to use such violence, or who is aware that his or her conduct may be violent, will be guilty of the offence. The new offence of affray is found in new section 93C. Affray is similar to riot in that it involves the use of a threat of unlawful violence. However, it does not require the existence of a group, and a person who threatens violence without intending to use it may be guilty of the offence. This offence may be committed in private as well as in public places. If, for example, a fight breaks out in a private place between a number of people, some of whom spill out on to an adjacent road, it would be anomalous if only the latter were guilty of affray, even though the other elements of the affray were satisfied by all of the participants, and the serious fighting had actually occurred in the private place. The maximum penalty for riot will be 10 years' imprisonment. The maximum penalty for affray will be five years' imprisonment. … The creation of these offences complements the new summary offence of violent disorder that I introduced as part of the Summary Offences Act 1988. As a result of these reforms, the law relating to public order has now been revised completely." 14 The Attorney-General's reference to the United Kingdom reforms contained in the Public Order Act 1986 (UK) is significant. As will be seen, the statutory offence of affray created in New South Wales in 1988 follows very closely the equivalent provisions in the Public Order Act 1986 (UK). In these circumstances, authorities concerning the proper construction of the United Kingdom provisions will assist in the construction of the New South Wales provisions.

The Offence under s.93C Crimes Act 1900 15 Section 93C Crimes Act 1900 is in the following terms: "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 5 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." 16 Section 93A defines the word "violence" for the purposes of Part 3A of the Act in the following terms: "In this Part:

(a) except for the purposes of section 93C, it includes violent conduct towards property as well as violent conduct towards persons, and

(b) it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short)." 17 Section 93D provides for, inter alia, the mental element for a s.93C offence. Section 93D provides: "93D Mental element under sections 93B and 93C

(1) A person is guilty of riot only if the person intends to use violence or is aware that his or her conduct may be violent.

(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) Subsection (1) does not affect the determination for the purposes of riot of the number of persons who use or threaten violence." 18 Although the present appeal does not involve the offence of riot contained in s.93B of the Act, it is useful to set out the provision given certain arguments which were advanced on the appeal. Section 93B provides: "93B Riot

(1) Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot and liable to imprisonment for 10 years.

(2) It is immaterial whether or not the 12 or more persons use or threaten unlawful violence simultaneously.

(3) The common purpose may be inferred from conduct.

(4) No person of reasonable firmness need actually be, or be likely to be, present at the scene.

(5) Riot may be committed in private as well as in public places." 19 The summary offence of violent disorder now contained in s.11A Summary Offences Act 1988 resembles, in a number of respects, the offence of riot contained in s.93B. The s.11A summary offence requires "three or more persons" to be present together using or threatening unlawful violence, as opposed to the "twelve or more persons" required for an offence under s.93B. There are some other points of difference between the two statutory offences which are not presently relevant. It is sufficient to note that a s.93C offence may be contrasted with a s.93B or a s.11A offence in that a s.93C offence does not require a specified number of persons to be present together using or threatening unlawful violence. An individual who is acting alone in using or threatening unlawful violence towards another may be convicted of an offence under s.93C. If two or more persons use or threaten unlawful violence, the conduct of those persons may be taken together and considered for the purposes of determining whether an offence of affray has been committed under s.93C(1) of the Act. However, the offence does not require a group of persons to be so acting for an offence to be committed. 20 At common law, it was held that self defence is an issue which may be raised by an accused in answer to a charge of affray and, if he does so, the prosecution bears the onus of excluding the possibility that the accused was acting in self defence when committing the acts on which the charge of affray is based: R v Honeysett (1987) 10 NSWLR 638 at 640. There is no express reference in Part 3A to self defence. However, s.93C(1) applies to a person who "uses or threatens unlawful violence towards another". The requirement for violence to be "unlawful" is significant. Of course, not all violence is "unlawful". At common law, a violent act upon another which was done in self defence was done with justification or excuse and was not unlawful: Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 662. The courts will construe a statute in conformity with the common law and will not attribute to it an intention to alter common law principles unless such is manifested in accordance with the true construction of the statute: R v Downs (1985) 3 NSWLR 312 at 321. Where the common law permitted self defence to constitute a defence to a charge of affray, it would take clear words to remove it with respect to the s.93C offence. Those words do not appear and the use of "unlawful" in s.93C(1) confirms the continued availability of self defence. It was common ground at the hearing before me that the provisions of ss.418 and 419 Crimes Act 1900 have application with respect to a charge of affray under s.93C of the Act. 21 Although s.93C has been in existence since 1988, it does not appear that the proper construction of the section has been considered by this Court or the Court of Criminal Appeal in the context of an appeal against conviction. The section has been referred to in a number of appeals against sentence: R v Huynh [2000] NSWCCA 18; R v Eleter [2003] NSWCCA 130 and R v Fajka [2004] NSWCCA 166. In each case, the Court was considering an appeal with respect to sentence imposed following a plea of guilty to a s.93C offence in the District Court. In Fajka, Howie J (Hulme and Simpson JJ agreeing) referred at paragraphs 28-29 to the operation of s.93C(2) of the Act: "Of course the applicant's conduct had to be considered in the context of the fact that his brother had become involved in a brawl with guests and staff at the hotel on what was in effect a family occasion, with children present. But that was the limited basis upon which the brother's conduct aggravated that of the applicant. Section 93C(2) does not mean, in my opinion, that the applicant was to be punished for all the conduct of both himself and his brother. Rather the section is concerned with ensuring that the conduct of the two of them is considered in determining whether that conduct 'is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety'. In a case such as the present the applicant could only be punished for that part of his and his brother's conduct which gave rise to the offence of affray and not that conduct which also resulted in some other offence or offences being committed by the brother, for example an assault occasioning actual bodily harm. In particular where the brother was charged with two offences of affray and the applicant only one offence, the sentencing court had to be careful not to take into account that part of the brother's conduct that gave rise to the second offence with which the applicant was not charged." 22 It is apparent that the offence under s.93C has its origin in the statutory offence of affray contained in s.3(1) Public Order Act 1986 (UK). Reference to this Act in the Second Reading Speech for the Crimes (Amendment) Bill 1988 (see paragraph 13 above) as well as the close similarity between the two sets of provisions tends to confirm that the UK Act was the foundation for the s.93C offence in New South Wales. Section 3(1) of the UK Act provides as follows: "(1) A person is guilty of affray if he uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.

(2) Where two or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purpose of subsection (1).

(3) For the purposes of this section a threat cannot be made by 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." 23 Section 6(2) Public Order Act 1986 (UK) provides that: "(2) A person is guilty of violent order or affray only if he intends to use or threaten violence or is aware that his conduct may be violent or threaten violence." 24 Section 8 of the UK Act contains a definition of "violence" in terms similar to that contained in s.93A of the Act. Section 9 of the UK Act provides that the common law offences of, inter alia, riot and affray are abolished. 25 In I v Director of Public Prosecutions (2002) 1 AC 285, the House of Lords considered the proper construction of s.3(1) of the UK Act. In the leading judgment, Lord Hutton observed at paragraph 11 that the 1983 Report of the Law Commission on Offences Relating To Public Order stated, in paragraph 3.1, that it considered that the new statutory offence of "affray should be similar to the common law offence with some clarification and narrowing of its elements". Upon this basis, Lord Hutton accepted that reference to common law principles with respect to affray was permissible in construing the statutory offence contained in s.3(1) of the UK Act. 26 In I v Director of Public Prosecutions, Lord Hutton said at paragraph 17: "The offence of affray, both at common law and now under statute, was primarily intended to punish a person or persons who engaged in a face to face confrontation where violence was used or threatened and where reasonably firm-minded members of the public would be put in fear." 27 Lord Hutton said at paragraph 24: "Therefore it is apparent that the Law Commission and Parliament intended that the offence set out in section 3 should penalise those who engage in a fight, whether they are landing blows, or attempting to land blows, or threatening to land blows, but it is also clear that in such circumstances the victim or victims are bound to be present with the offender or offenders. Accordingly I regard it as clear that the section does not make guilty of an affray a person whose conduct constitutes a threat of violence to persons who are not present. This conclusion also derives support from the requirement in subsection (1) that the conduct of the offender is such that it would cause a bystander 'present at the scene' to fear for his personal safety. The concept of presence at the scene suggests that the notional bystander would be in the presence of both the offender and the victim. It is also relevant to observe that there is no reported case of affray where the victim was not present at the scene where the accused threatened violence." 28 Lord Hutton concluded his judgment in I v Director of Public Prosecutions with the following statement at paragraph 28: "The present case demonstrates that a person should not be charged with the offence unless he uses or threatens unlawful violence towards another person actually present at the scene and his conduct is such as would cause fear to a notional bystander of reasonable firmness."

29 At common law, it was held that an element of common purpose is not essential to constitute an affray. It was wrong to conclude that affray was, of necessity, a joint offence: Taylor v Director of Public Prosecutions [1973] 2 All ER 1108 at 1110, 1114, 1116. It is noteworthy that s.98B(1) requires that the 12 or more persons who are present together in an alleged riot act "for a common purpose". There is no reference to common purpose in s.93C of the Act. This is further confirmation that the statutory offence of affray in s.93C may be committed by an individual and does not require a form of group action. 30 It has been recognised that conviction for assault may be more difficult than conviction for affray. In Button v Director of Public Prosecutions [1966] AC 591, Lord Gardiner LC, in delivering the judgment of the House of Lords, said at 627-628: "It was further argued that no practical purpose is served by re-establishing the law relating to affray, since it could only lead to the multiplication and overlapping of charges. Where a charge of affray could lie, it is said, so too would a charge of assault, and thus the latter charge suffices to protect the public. The respondent, however, contended that evidence is difficult to obtain in the mélée of disturbance and fighting and that there are situations in which it would be possible to convict of affray on evidence that would not justify a conviction of assault. The Court of Criminal Appeal took the view that the offence of affray was a useful part of the criminal law in modern times. I agree with that view."

The Present Case 31 Reference has been made earlier in this judgment to the course of proceedings before the learned Magistrate culminating in the conviction of the Plaintiffs for offences of affray under s.93C of the Act. It is necessary to say something more at this stage concerning the facts of the case. 32 In accordance with usual practice, the transcript of the proceedings before the Local Court was placed before me for the purposes of this appeal. Part of the evidence before the Local Court comprised a video tape containing a compilation of images captured by close-circuit television cameras from different angles within the Star City Casino. In effect, the incident which gave rise to the charges was captured on film by cameras located in the ceiling of the Casino. Mr Lakatos, Counsel for the Defendant, made application before me that the video tape be played at the hearing of this appeal. Mr Bellanto QC resisted this course, submitting that a viewing of the video tape would not assist the resolution of the issues raised by the appeal. As the video tape was an exhibit in the Local Court and formed part of the evidence in the proceedings at first instance, it seemed to me that the video tape ought be played if a party to the proceedings submitted that a viewing of it would assist me in the determination of the appeal. Accordingly, I ruled that the video tape should be played. This was done in Court and assisted me, as it appears to have assisted the learned Magistrate below, in an understanding of the issues in the case. 33 Since reserving my decision and for the purposes of preparing this judgment, I have read the complete transcript and viewed the video tape again. This has assisted further my understanding of the evidence in the Local Court and the issues raised on appeal. 34 It appears from the cross-examination of the officer-in-charge, Detective Sergeant Whitty, that there was no issue that the three Plaintiffs together with a Mr Bensley and three women, Melissa Dennis, Christine Dennis and Lauren Bessel, attended the Lagoon Bar at Star City Casino, following a wedding, in the early hours of Monday, 18 November 2002 (Transcript, 19 July 2004, page 25). The three Plaintiffs and Mr Bensley were all dressed similarly in black shirts, trousers and shoes. In the Local Court hearing and on appeal, the four men were referred to as the "men in black". Mr Bensley was not charged with any matter although Detective Sergeant Whitty agreed that he was involved in the incident in the sense that he was on the floor at one stage and was pushed up against the bar at one stage by a security officer (Transcript, 19 July 2004, page 17.19, 25.24). The role of Mr Bensley is relevant to a ground of appeal and I will return to it later in this judgment. 35 The prosecution case was based upon the oral evidence of a number of witnesses, including the security officers involved in the incident, and the compilation video which depicted the incident from different angles. Reference will be made to portions of the evidence when the grounds of appeal are considered later in this judgment. For present purposes, however, it is appropriate to turn to the reasons of the learned Magistrate. In doing so, it should be borne in mind that his Honour delivered several judgments in the proceedings. It is appropriate to refer to parts of the judgments with respect to prima facie case and conviction concerning all the charges which were being heard. 36 Mr Lakatos submitted, correctly, that it was necessary to bear in mind that these were ex tempore judgments. Although his Honour reserved part of his decision from 27 to 28 July 2004, it is appropriate to characterise the judgments delivered on 28 July 2004 as ex tempore ones. His Honour did not have the benefit of a transcript of the evidence at the time when judgments were given. The fact that his Honour's reasons constitute an unedited and unpunctuated record of ex tempore remarks in a busy Magistrate's Court must be kept in mind in considering the issues on this appeal: Acuthan v Coates (1986) 6 NSWLR 472 at 479A, 485C-D. Such a judgment should not be picked over and appropriate allowance should be given to the pressures under which Magistrates are placed by the volume of cases coming before them: Neighbourhood Association DP295386 v Forgeron [2005] NSWCA 150 at paragraph 15. 37 In the course of his judgment on prima facie case with respect to the charges under ss.35(1)(b), 59(1) and 61 Crimes Act 1900, his Honour said (Transcript, 27 July 2004, page 16.29): "As I indicated in my exchange between Sergeant Sykes and Mr Bellanto, there is absent identification parade evidence or picture identification evidence. The evidence collectively of the prosecution witnesses as describing persons in black, of various heights, I do not specifically, for the purposes of this exercise, need to go into chapter and verse as to what each and every witness indicates as to how they describe these persons, but each in their mind knows or believes they know who committed an offence against themselves or did give evidence of actions against colleagues or other persons in the Lagoon Bar. Mr Bellanto has identified that there is a - whilst this is my word and not his, effectively a fundamental flaw in the identification process. The prosecution invite me quite properly in my view to view the photographic evidence by way of video, in terms of indicating that the event took place. It is quite evident from what took place that the events occurred." 38 In finding no prima facie case against the Second Plaintiff upon the s.35(1)(b) charge, his Honour said (Transcript, 27 July 2004, page 17.11): "In my view it would be highly unlikely, bearing in mind what I have viewed on the video coupled with the collective oral evidence that the punches attributed to Sergio Colosimo on Mr Bracamonte would have caused grievous bodily harm, so in my view at prima facie level prosecution have not satisfied me in relation to that event, and that charge, that is involving defendant Sergio against Alan Bracamonte, will be dismissed." 39 At the prima facie case level a number of submissions were made on behalf of the Plaintiffs in relation to the s.93C offences. It was submitted for the Plaintiffs that the charge of affray was inappropriate to meet the type of activity that occurred because there were specific charges, that this was not a joint criminal enterprise case; and that there was evidence of self defence present (Transcript, 27 July 2004, pages 21-23). His Honour found there was a prima facie case with respect to the affray charge (Transcript, 27 July 2004, pages 26-27). Further submissions were made on behalf of the Plaintiffs (Transcript, 27 July 2004, page 28ff). It was submitted that the Plaintiff should have the benefit of good character; that the prosecution had failed to negative the issue of self defence; that there was unclear evidence as to identification and who did what act; that there were issues of credibility and reliability of the security officers; that due to the absence of identification evidence, the prosecution must prove there is a common purpose or common enterprise "to join in what was a pre-existing violent series of acts" (Transcript, 28 July 2004, page 6.51); that the prosecution must show "that the accused applied their mind to something taking place and got involved with that mindset knowing that what they were doing was likely to offend the reasonable bystander" (Transcript, 28 July 2004, page 9.22) and that there was no evidence that would cause a person of reasonable firmness to fear for his or her safety (Transcript, 28 July 2004, page 10). It was contended that this was "not an affray situation, either philosophically or factually or legally" (Transcript, 28 July 2004, page 11.19). 40 Given the issues raised in this appeal, it is appropriate to set out in their entirety, the learned Magistrate's reasons for finding the affray charges proved. Again, I bear in mind the ex tempore nature of his Honour's judgment. His Honour said (Transcript, 28 July 2004, page 11.53-14.25): "The three defendants are charged, and were charged initially, with the charge of affray, which comes under s.93C of the Crimes Act. And it is not a particularly lengthy section, but 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 an affray. If two or more persons uses or threatens the unlawful violence it is the conduct of them taken together that must be considered for the purposes of subsection 1. For the purposes of this section a threat cannot be made by the use of words alone. No person of reasonable firmness need actually be, or be likely to be, present at the scene, and lastly the affray may be committed in private as well as in public places. Well it seems if that termination does not apply, well - that is whether it is or isn't in a public place, but for the purposes of the exercise I suppose, it certainly is a public place. Now firstly in my view there are two or more persons, there are three, in fact there were four. I am dealing with three. And it is their conduct in my view taken collectively which, if viewed in that collective circumstance, would be conduct which would be considered for the purposes of s.93C(1). One aspect of, of course the submission made by Mr Bellanto in relation to his respective clients, is that they are each of good character. And of course as a matter of law I am required to take that into account in assessing whether they are persons who would be likely to commit this offence. They are each young persons, and from a criminal history point of view, are persons of good character. Now this event, and I will use that term again, started it is fair to say in my view somewhat innocently, inoffensively, that is the detection of one of the young males, which I believe to be Vincenzo, coming in contact with a security door. He is then, as is required it seems, by the Casino in implementing the Liquor Act Provisions conducted a responsible service of alcohol assessment. They did so, and did so most properly. Shortly before that assessment took place, and dare I say after the assessment took place by Mr Webb, it was the involvement of three others who then took it upon themselves to question the decision that had been made. Now true it is the video indicates visual only and not audio, but it is very apparent to me in seeing and viewing it, I think I can say repeatedly, that there was significant disquiet from the men in black. And I am using those terms, because at this stage of the proceedings [sic] did not know who they were, apart from the fact that there were three members of the one family. And it is clear that they were not pleased with the decision that had been made. But it seems with the ongoing conversation that whilst reluctant they certainly appeared to accept it. All of the security which happened to be at that stage Mr Bracamonte, Mr Webb and Mr Wood, having accepted their indication that they were going to leave, moving back in to the Lagoon Bar, and it is obvious that there was a conscious effort on behalf of at least one of the security officers to make sure that they were heading in the right direction, so to speak. Now what flowed from that was an indignation from one of the men in black regarding the speed with which they were required in my view to leave. That indignation resulted in the behaviour of one of them in pushing, for reasons that are not obvious to me, the security officer in the back, and it was a most violent act in my view in those circumstances, unnecessary. So then, as a result of that, the security officer turns around and with more good luck than good management ducks a punch from one of the men in black. So then there is what happens over a very short period of time is an involvement by these three officers, the three men in black, towards Mr Webb and Mr Bracamonte. Now it has been urged upon me that there has to be a degree of common purpose. I do not see why that needs to be, in my view, an element of this offence. But even if it was it seems to me that the actions of one precipitated the actions of others. Now it was my determination that the identification of particular persons involved in particular acts could not be proved to the requisite standard. It was urged or submitted to me that there was no evidence of implication beyond reasonable doubt. There certainly was evidence that it was not in my view sufficient to satisfy the elements of those individual charges. The evidence, which is on the tape, and which has been given in evidence by Mr Bracamonte, Mr Webb, is that he, Mr Bracamonte, was kicked, he was punched, unlawful acts. True it is on the available evidence I could not be satisfied to the requisite standard of the individual charge of grievous bodily harm. There was evidence that both pictorially and in a group situation, where Mr Bracamonte had received a bite. There was evidence in relation to Mr Bannister. He enters because he sees what is happening, and he drags off a person, who then in attempting to get out of that hold, uses his hands on the eyes of Mr Bannister. A male grabs Mr Ogston, puts him in a choke hold. The result from that is that efforts are undertaken by security to release that hold. The result of that is a person, a man in black comes in and starts punching Mr Heaney. Now it has been urged upon me that amongst other things that the security officers could not be described as persons of reasonable firmness, because that is their job, they are there, and should not be the yard stick, which was the submission that was made. But provisions of the Statute provide that persons do not have to be of reasonable firmness, but he might have to be present. Now it has also been urged upon me that these officers - I withdraw that, these three persons did not apply their minds to the situation at hand. Well on the available evidence to me that is exactly what they did. They applied their minds to the situation. It has also been urged that they were reactive. To me, that is a concerted effort on behalf of the defendants to deflect the blame. Right from minute one they blame them. True it is and I accept this submission that the event was shut down relatively quickly. It has been urged upon me that these two people who were having a stickybeak could be used I suppose whilst .. (not transcribable) .. were not used as a yardstick but certainly they would not be in fear of their safety. It is true to say that most of the actual events of aggression towards the security officers had passed. It seems to me on the available evidence, whilst I could not be satisfied in the discrete offences as to who acted against any specific officer, in my view I do not have to find that. It is their actions which in my view are unlawful and when taken together, a person, if they were there, in my view would have a significant fear for his or her safety and in my view the evidence which has been given both orally and by way of video evidence does not show to me that these persons were acting in self-defence. I FIND EACH OF THE OFFENCES PROVED BEYOND REASONABLE DOUBT." Error of Law 41 Before turning to the grounds of appeal, reference should be made to the types of error of law alleged in this case. Some of the grounds allege, in one way or another, that findings made by the learned Magistrate were not supported by the evidence. A finding of fact may reveal error of law where it appears that the Magistrate has misdirected himself, that is, has defined otherwise than in accordance with law the question of fact which he has to answer: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156C. An ultimate finding of fact, even in the absence of misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made: Azzopardi at 156C-D. In the context of a criminal case, a finding of a prima facie case involves a decision whether, on the evidence as it stands at the end of the prosecution case, the accused person could lawfully be convicted. That is a question of law: May v O'Sullivan at 658; Amalgamated Television Services Pty Ltd v Marsden (2001) 122 A Crim R 166 at 174-176. 42 Once a prima facie case is established, the question whether the Magistrate is satisfied beyond reasonable doubt of the guilt of the accused person is a question of fact: May v O'Sullivan at 658.8. To say that a finding is contrary to the evidence and the weight of the evidence raises a question of fact and not law: Azzopardi at 155G-156A.

Ground 1 - The Learned Magistrate Erred in Law by Having Regard to the Provisions of s.93C(2) Crimes Act 1900 w hen the Prosecution did not Contend that the Plaintiffs Acted in a Common Criminal Purpose 43 In approaching this ground of appeal, it is necessary to bear in mind the general observations I have made concerning the offence of affray in s.93C of the Act. In particular, concepts which may be relevant to other offences (for example, riot) or to the determination of the charges under ss.35(1)(b), 59(1) and 61 Crimes Act 1900 which were before the Magistrate and were dismissed, should be put to one side. 44 In support of this ground, Mr Bellanto QC submitted that the Magistrate found that he could not identify any of the Plaintiffs. He submitted that the offence of affray was assessed as a course of conduct carried out by the Plaintiffs as a group. He noted that the prosecutor in the Local Court had expressly disclaimed any reliance on a common or joint course of conduct. Reference was made to the learned Magistrate's observation concerning common criminal purpose in the following terms: "I do not see why that needs to be, in my view, an element of this offence. But even if it was it seems to me that the actions of one precipitated the actions of others." 45 Mr Bellanto QC submitted that the events in question began with the Third Plaintiff talking to Mr Webb which led to an incident between one of the other "men in black" which then led to further incidents. It was submitted that each incident was separate and discrete and there was no common purpose and no continuous course of violence that could be held to be an affray. It was submitted that, in any event, there must be an appreciation by one or more participants of what is occurring and a joining in. It was contended that the Plaintiffs did not fall within this category. 46 Mr Lakatos submitted that the terms of s.93C do not include any reference to common purpose and that it was clear that common purpose was not an element of the offence. It was emphasised that the term is used with respect to the offence of riot contained in s.93B of the Act. 47 Further, Mr Lakatos submitted that it was clear that the common law notion of common purpose (see Osland v The Queen [1998] 197 CLR 316 at 342-3) did not apply in the present circumstances. 48 Mr Lakatos submitted that, based on the available evidence, which did not include any evidence that the Plaintiffs were involved in the incident by reason of an agreement between them, the prosecutor disavowed reliance on this concept. However, the prosecutor did rely on s.93C(2) of the Act, namely that the Plaintiffs at the same time and place, used unlawful violence and thus their actions could be considered together (Transcript, 27 July 2004, pages 24, 38). This was not common purpose in the Osland sense. Mr Lakatos contended that the video evidence made it plain that there was a substantial and persuasive basis for this submission. 49 Mr Lakatos submitted that his Honour's determination that common purpose was not required to be proved was correct and, further, that the prosecutor and the learned Magistrate correctly relied upon s.93C(2) of the Act. 50 I agree with Mr Lakatos that common purpose is not an element of an offence under s.93C of the Act. I do not accept the Plaintiffs' submission that this was a series of separate and discrete events and that a s.93C offence could not be committed in these circumstances. 51 The type of conduct which may constitute affray under s.3 of the UK Act was considered in R v Smith [1997] 1 Cr App R 14 where, on the facts of that case, the Court of Appeal held that there were two distinct incidents inside and outside a house which should be regarded as separate, and not continuous, sequences of conduct. In delivering the judgment of the Court, Lord Bingham CJ said at 17: "It is essential in considering this submission to bear in mind the nature of the offence of affray. It typically involves a group of people who may well be shouting, struggling, threatening, waving weapons, throwing objects, exchanging and threatening blows and so on. Again, typically it involves a continuous course of conduct, the criminal character of which depends on the general nature and effect of the conduct as a whole and not on particular incidents and events which may take place in the course of it. Where reliance is placed on such a continuous course of conduct it is not necessary for the Crown to identify and prove particular incidents. To require such proof would deprive section 3(1) of the 1986 Act of its intended effect, and deprive law-abiding citizens of the protection which this provision intends that they should enjoy. It would be asking the impossible to require a jury of 12 men and women to be satisfied beyond reasonable doubt that each or any incident in an indiscriminate mêlée such as constitutes the typical affray was proved to the requisite standard. Different considerations may, however, arise where the conduct which is alleged to constitute an affray is not continuous but falls into separate sequences. The character of the conduct relied on in each sequence may in such a case be quite different and so may [have] the effect on persons who are (or might hypothetically be) present at the scene. The possibility then arises that half the jury may be persuaded that the first sequence amounted to an affray and the second did not, and the other half of the jury may be persuaded that the second sequence amounted to an affray and the first did not. The result would then be that there was no unanimous jury verdict in support of conviction based on either sequence."

This passage has been cited with approval by the New Zealand Court of Appeal in R v Mead [2002] 1 NZLR 594 at 602 (paragraphs 36-38). 52 In my view, an examination of the transcript of evidence and the video of the incident in this case supports the conclusion that the incident here involved a continuous course of conduct in the sense described by Lord Bingham CJ. Accordingly, his Lordship's observations concerning that class of case are pertinent to this appeal. 53 The learned Magistrate had a substantial body of evidence concerning the incident by way of the oral evidence of witnesses and the compilation video tape of the incident. The events occurred in one area (the Lagoon Bar) over a relatively short period of time (about 90 seconds). These were not separate and discrete incidents. The images depicted in the video tape reveal that four "men in black" were, at times, engaged in aggressive conduct during the incident. There was no issue before the Local Court that the three Plaintiffs were included in the group of four "men in black". Accordingly, there was evidence that the Plaintiffs engaged in aggressive conduct, and it was not necessary for the prosecution to establish which Plaintiff performed each specific violent act before any or all of the Plaintiffs could be found guilty of affray. 54 In my view, there was evidence before the Local Court which permitted his Honour to rely upon s.93C(2) of the Act. This does not involve application of the common purpose principle. Rather, it involves the application of the words of the statutory offence which permitted the learned Magistrate to take the conduct of the Plaintiffs together in determining whether it would have the requisite effect upon a person of reasonable firmness so as to constitute the offence under s.93C(1) of the Act. 55 In my opinion, no error of law has been demonstrated in the manner alleged in Ground 1.

Ground 2 - The Magistrate Erred in Law in Not Applying s.93D(2) Crimes Act 1900 to his Deliberations 56 Mr Bellanto QC submits that the learned Magistrate made no reference to s.93D(2) in his judgment and thereby erred in law in failing to have regard to the requisite mental element for an offence under s.93C of the Act. 57 Mr Bellanto QC next submitted, under this heading, that each of the Plaintiffs were not proved to have the requisite intent. 58 Mr Lakatos submits that, whilst there was no specific reference to s.93D(2) in the learned Magistrate's judgment, a finding was made that the Plaintiffs had "applied their minds to the situation". This finding was made by his Honour following a submission on behalf of the Plaintiffs in the Local Court that the prosecution must show "that the accused applied their mind to something taking place and got involved with that mindset" (Transcript, 28 July 2004, T9.22). 59 Although the learned Magistrate did not refer, in terms, to the elements contained in s.93D(2) of the Act, I am not satisfied that the learned Magistrate misdirected himself in law in this respect. The mental element in s.93D(2) is expressed in the alternative. The first alternative requires an "intent to use or threaten violence". The second alternative requires an awareness that the person's "conduct may be violent or threaten violence". The second alternative involves a lesser mental element. His Honour used the language of the submission advanced on behalf of the Plaintiffs in rejecting that submission. 60 Insofar as Mr Bellanto QC submits that each of the Plaintiffs were not proved to have had the requisite intent, I take this submission to mean that there was an error of law in that the evidence before the Local Court was not capable of supporting a finding of the requisite mental element. 61 I accept the submission of Mr Lakatos, for the Defendant, that the mental state of the Plaintiffs may be inferred from their actions: Thomas v The Queen (1959-1960) 102 CLR 584 at 596; Vallance v The Queen (1961) 108 CLR 56 at 82. There was evidence before the learned Magistrate in the form of the oral evidence from witnesses and, in particular, the compilation video tape which demonstrated that the Plaintiffs acted in a manner which was capable of supporting an inference that each of them had the requisite mental element under s.93D(2) of the Act. The actions of the Plaintiffs as depicted on the video provided a strong foundation for such a conclusion. 62 In my opinion, the Plaintiffs have not made good the error of law alleged in Ground 2.

Ground 3 - The Magistrate Erred in Law in Adjudicating the Cases of the Plaintiffs Globally Rather than Each Case on its Merits 63 Senior Counsel for the Plaintiffs submitted that, while the conduct of the Plaintiffs can be taken together, there is still a requirement that each individual said to be involved in the affray be found guilty according to his own involvement. It was submitted that the learned Magistrate did not take account of this suggested requirement and merely found that the Plaintiffs were involved and were therefore, as a group, guilty of the offence charged. 64 Mr Bellanto QC emphasised that his Honour had held that the evidence was incapable of establishing, beyond reasonable doubt, the identity of persons charged with the specific offences under ss.35(1)(b), 59(1) and 61 Crimes Act 1900. Reference was made to the learned Magistrate's statement that "It was my determination that the identification of particular persons involved in particular acts could not be proved to the requisite standard". 65 Mr Bellanto QC submitted that, nonetheless, his Honour found the Plaintiffs guilty of affray on a global level. It was submitted that it is an error to argue that two or more men were involved in the affray, and thereby the remainder of the men were implicated. It was submitted further that the absence of evidence identifying the men who were involved precludes a conviction, as the men cannot be convicted as a group with no knowledge of their individual identities. 66 Mr Bellanto QC sought to draw an analogy arising from the decision of the Court of Criminal Appeal in R v Filippetti (1978) 13 A Crim R 335 with respect to negating possession on the part of other occupants of a house where a single occupant is charged with possession of a drug within that house. 67 It was submitted for the Plaintiffs that, in the present case, there was a fourth "man in black" involved. This fourth man was involved in the incident but not charged and, it was submitted, his participation must be excluded. If not, it was submitted that there must be a reasonable doubt that each of the Plaintiffs was guilty of the offence charged. Mr Bellanto QC sought to rely upon the statements of Howie J in Fajka (paragraphs 27 and 29) set out earlier in this judgment. 68 It was submitted for the Plaintiffs that it was not possible in this case to establish the identity of each Plaintiff beyond reasonable doubt and that, accordingly, each Plaintiff was penalised for the conduct of another. The individual conduct of each Plaintiff was not identified or judged on its merits. Mr Bellanto QC submitted that the deficiencies of identification cannot be simply put to one side. There was no attempt to isolate an event or events to which one or more of the Plaintiffs enjoined. 69 Mr Lakatos submitted that a review of the texts and authorities indicates that the Courts have acknowledged with respect to the offence of affray, that specific evidence linking individual persons to specific violent acts has often not been available, nor was it an essential matter to be proved. 70 Mr Lakatos referred to Taylor v Director of Public Prosecutions, in which Lord Hailsham LC observed at 1112: "The typical affray is of course a melee between many participants in which many blows are given and received by the participants." 71 Reliance was placed upon passages in I v Director of Public Prosecutions, in which consideration was given to the statutory offence of affray in the United Kingdom, the apparent model for the offence in s.93C of the New South Wales Act. At paragraph 23 of the judgment, Lord Hutton quoted extensively from the Report of the Law Commission on Offences Relating to Public Order, at paragraph 3.16: "In the context of street fighting such a distinction seems artificial: we believe, on reconsideration, that any offence which is aimed, in broad terms, at unlawful fighting to the terror of the public should be capable of penalising all those concerned in a particular incident, whether the evidence is that - (i) in some cases blows actually landed on others, (ii) in others it is uncertain whether blows landed, or (iii) some defendants were merely threatening blows. Under our provisional proposals, only those falling within (i) would have been liable to be penalised for affray. We now recommend that under any new offence persons in all three categories should be liable. This will enable the court to do justice on the whole of the evidence relating to a particular incident. It must be accepted, however, that a broadening of the categories of prohibited acts in this way would permit the offence to be charged when no one was actually engaged in acts of fighting."

In the light of this statement, Lord Hutton observed at paragraph 24: "Therefore it is apparent that the Law Commission and Parliament intended that the offence set out in section 3 should penalise those who engage in a fight, whether they are landing blows, or attempting to land blows, or threatening to land blows, but it is also clear that in such circumstances the victim or victims are bound to be present with the offender or offenders." 72 The Defendant relied upon the following statement of the New South Wales Court of Criminal Appeal in Eleter at paragraphs 14-16: "[14] We turn, then, to the complaint that the sentences do not reflect the different levels of culpability of each of the applicants and of their father. As to the applicants themselves, it was pointed out that Tony Eleter struck Joseph Attallah, whereas George Eleter did not inflict violence upon anyone, and it was argued that George Eleter should accordingly have been dealt with more leniently. It does not appear that any such submission was made to his Honour, who made no reference to that distinction in his remarks. (Counsel who appeared for the applicants in this Court had not appeared in the sentence proceedings.)

[15] In any event, in the circumstances of this case, that distinction did not necessarily call for different sentences. It was the conduct of the group of offenders, who had arrived at the scene at about the same time, bent on retribution, which was significant here. It is important not to lose sight of the nature of the offence of affray, which is spelled out in the first two subsections of s 93C of the Crimes Act:

[16] This is not to deny that there may be cases in which the level of involvement of the various participants in an affray calls for some differentiation in penalty. As between the applicants, however, this was not such a case." 73 In Huynh, Hulme J (Spigelman CJ and Smart AJ agreeing) said at paragraph 29: "Furthermore, there is also much to be said for the distinction, adverted to in Thomas, Principles of Sentencing , 2nd Ed, p 111, between premeditated affrays, including pitched street battles of rival gangs, and the affrays which break out spontaneously in response to an unforeseen event. All other things being equal, clearly the former merit heavier punishment than the latter." 74 The affray alleged in the present case may be regarded as an example of the second class referred to, namely one which broke out spontaneously in response to an unforeseen event. 75 By way of further example, Mr Lakatos referred to a statement in The Digest, Annotated British, Commonwealth and European Cases, 2nd Reissue, Butterworths, Vol 14(1), at page 102 to the following effect: "In an affray specific evidence as to the acts of each fighter cannot be expected, but only general evidence as to the accused taking part in it, and persons who, as in this case, punted the boats on which the fight took place, and in whose interests the fight on the boats took place, were held to be just as blameworthy as the men who struck the blows, Moher (Sheikh) v R (1893) ILR 21 Calc 392 (Ind)." 76 I have referred earlier in this judgement to the observations of Lord Bingham CJ in Smith concerning affray, and those observations provide further support for the argument advanced by the Defendant. 77 Mr Lakatos submitted that the approach identified in the cases referred to above is consistent with the views of Howie J in Fajka at paragraph 29 that the offender could be punished for his own and his brother's conduct which constituted the affray. 78 It was submitted for the Defendant that there was evidence in this case that the Plaintiffs were present at the scene of the offence, that they participated in the brawl and that they were arrested shortly thereafter. The only area of doubt was which Plaintiff carried out which specific assault. His Honour indicated that he had regard to s.93C(2) in consideration of the question of whether the offences were made out. It was submitted in the Local Court that his Honour was entitled and required to do so by that provision which states that the conduct taken together "must" be considered. The Defendant submits that this approach is consistent with both the terms of the New South Wales Act and the approach to such offences in this country and in the United Kingdom. Consequently, the Defendant submits that no error has been established in respect of this ground. 79 In approaching this ground of appeal, it should be kept in mind that there was a closed category of persons constituting the "men in black". The fact that the fourth man, Mr Bensley, was not charged with the offence does not, in my view, affect the criminal liability of the Plaintiffs for a s.93C(1) offence. The learned Magistrate found that four persons, including the three Plaintiffs, were involved in the incident. The incident as described in the oral evidence and depicted in the compilation video tape may be fairly described as a brawl or melee. 80 It is appropriate to refer to parts of the evidence and the scenes depicted on the video tape at this point. The video tape depicts four "men in black" who are, at times, engaged in aggressive conduct. This is not a case where only three of the four "men in black" engaged in such conduct. It is the case that three "men in black" are particularly active in their aggressive conduct during the incident. 81 Each of the four "men in black" were being held down by security officers at the time when police arrived (Conroy, Transcript, 20 July 2004, T29.13). One of the "men in black", Mr Bensley, expressed some discomfort about his shoulder after the incident and an icepack was provided to him (Conroy, Transcript, 20 July 2004, T30.16; Buttrose, Transcript 20 July 2004, T34.14). Mr Bellanto QC cross-examined Detective Sergeant Whitty to the following effect (Whitty, Transcript, 19 July 2004, T25.24): "Q. And you would have observed from the video that as you've already indicated I think, Mr Bensley was involved in the incident?

Q. Well he was involved in a sense that he was on the floor at one stage, remember that?

Q. And he was one of the group including the three accused, who was taken to the interview room at the casino pending the arrival of other police, correct?

A. That's right." 82 Mr Webb referred to a fourth male whom he described as "Caucasian" or "Australian", meaning "non-Italian or non-Lebanese or non-Greek" (Transcript, 22 July 2004, T7.20ff). This is an apparent reference to Mr Bensley. Mr Webb said that the "Caucasian male" had slapped Mr Webb's hand away from him (Transcript, 21 July 2004, T47.52; 22 July 2004, T7.45). Mr Webb said that he and the "Caucasian man" ended up on the floor (Transcript, 22 July 2004, T12.54) and Mr Webb then restrained the "Caucasian male" (Transcript, 22 July 2004, T30.25). 83 It was the evidence of Mr Webb and Mr Bracamonte that some agitation developed on the part of the "men in black" following the discussion between the security officers and one of the "men in black", whom the learned Magistrate believed was the Third Plaintiff. Aggressive and insulting language was directed towards Mr Webb and Mr Bracamonte. It was open to the learned Magistrate to find that one or more of the Plaintiffs had used such language given that the subject matter being referred to was discussion between the security officers and the "brother" of some of the "men in black" (Webb, Transcript, 21 July 2004, T44-45; Bracamonte, 22 July 2004, T46). 84 A security officer who arrived on the scene after the incident had commenced, Mr Cutrupi, said "the first thing we saw were there were four males dressed in black fighting with the security guards …" (Transcript, 26 July 2004, T78.6). 85 These references to the transcript demonstrate that there was evidence before the learned Magistrate upon which he could find that the four "men in black" were engaged in violent or aggressive conduct. That view is supported by the scenes depicted on the video tape. This is not a case where three of the four "men in black" were engaged and the fourth abstained completely from the incident. As a matter of law, there was evidence which allowed the learned Magistrate to make the finding which he did. 86 In particular, the fact that the "Caucasian male" (Mr Bensley) appears to have been involved with Mr Webb, and remained so involved whilst the incident continued, supports a conclusion that the three remaining "men in black" who were aggressively involved in the incident were the Plaintiffs. 87 Of course, this is not a fresh trial of the matter. I am not exercising the function of a trial judge required to make findings on the evidence to the criminal standard. The issue before me is whether error of law is demonstrated in accordance with the principles referred to in paragraph 41 above. The purpose in referring to the evidence in this way is to identify a foundation for the Magistrate's findings. 88 The cases concerning the offence of affray at common law and under the United Kingdom statute have emphasised that identification of particular acts by particular persons involved in the incident may not be easy. In addition to the cases relied upon by Mr Lakatos, reference should be made to the judgment of Lord Gardiner LC in Button v Director of Public Prosecutions set out in paragraph 30 of this judgment where his Lordship referred to a submission, apparently accepted, that "evidence is difficult to obtain in the melee of disturbance and fighting and that there are situations in which it would be possible to convict of affray on evidence that would not justify a conviction of assault". 89 In some cases of affray, of course, where two or three persons only may be involved, identification of the particular acts of individual persons may be easier. However, the fact that such identification of individual acts may not be available where a larger number of persons are involved in a fluid brawl or melee does not mean that persons involved in such an incident cannot be convicted of the offence of affray. It is necessary to bear in mind the elements of the offence under s.93C of the Act. In my view, those elements may be satisfied where a finding is open that persons charged with affray have engaged in unlawful violence even if the specific acts committed by each individual cannot be precisely identified. In my opinion, such a finding was open on the evidence against each of the Plaintiffs in this case. 90 Accordingly, I am not satisfied that the learned Magistrate fell into error in approaching the matter in the way that he did. The Plaintiffs have not made good the error of law alleged in Ground 3.

Ground 4 - The Magistrate Erred in Law When Imposing an Onus on the Plaintiffs in his Consideration of the Issue of Self Defence 91 As mentioned earlier in this judgment (paragraph 20), it was common ground at the hearing before me that the provisions of ss.418 and 419 Crimes Act 1900 relating to self defence have application with respect to a charge of affray under s.93C. 92 Section 418 is in the following terms: "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, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them." 93 Section 419 is in the following terms: "419 Self-defence - onus of proof 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." 94 Section 422 provides as follows: "422 Self-defence - response to lawful conduct This Division is not excluded merely because:

(a) the conduct to which the person responds is lawful, or (b) the other person carrying out the conduct to which the person responds is not criminally responsible for it." 95 Mr Lakatos accepted that, where an issue of self defence is raised on the evidence, the onus lies upon the prosecution to negative self defence: s.419. He submitted that there must be some evidence to raise self defence before the onus arises. He referred to R v Katarzynski [2002] NSWSC 613 where Howie J said in paragraph 4 "the evidence in this trial would appear to give rise to a consideration by the jury of whether the accused was acting in self-defence under section 418(2)". 96 In R v Burgess and Saunders [2005] NSWCCA 52, Adams J (Hislop J and Newman AJ agreeing) said with respect to s.418, in the context of an argument whether self defence was raised on the evidence (paragraph 24): "It is obvious that, in order to confine cases to the real issues raised by the evidence, it is appropriate for a trial judge to consider whether particular issues should be left to the jury. In principle, this is unarguable. It is also correct, as the appellants submit, that the judge must not intrude into factual matters that are within the jury's province to determine. However, it is clear that the judge must be able to evaluate the evidence to some extent in order to arrive at the conclusion that there is evidence which is capable of establishing - though, of course, it might not ultimately be accepted as establishing - the elements of a defence such as self-defence. There is no doubt that this is a question of law and not of fact, even though it involves an evaluation of the evidence." 97 In R v Nguyen (1995) 36 NSWLR 397, after considering a number of decisions including Zecevic and Honeysett, Priestley JA (Smart and Ireland JJ agreeing) said at 412: "Summarising what I have said earlier (and risking repetition in the hope of achieving a clear statement), the authorities support the view that the idea of self-defence depends on a person, attacked or threatened with attack, who does not want to fight, being unable, acting reasonably, to avoid fighting in self-defence. In such a situation the rules stated in Zecevic apply. But if the fact is that the person wants to fight, then questions of self-defence do not arise." 98 It will be recalled that the Plaintiffs did not give evidence in the present proceedings. Nor did they participate in interviews or give statements to investigating police. Accordingly, there was no version from them before the Court concerning their actions and their state of mind at the time of the relevant incident. Acting Sergeant Buttrose gave evidence that, in general conversation after the incident, one of the men "and I couldn't tell you which one, was saying they [the security officers] started it" (Transcript, 20 July 2004, T35.35). 99 Mr Bellanto QC submitted that self defence was raised by his cross-examination of Mr Bracamonte (Transcript 22 July 2004, T68.42): "Q. And thereafter what occurred was really a series of acts where these various men were either defending themselves from violence from you or your colleagues or defending each other, helping each other?

A. That could be a possibility, yes. We get that all the time but. Of course when there's a group there [sic] always going to be always involved because they don't want their friend getting asked to leave. Nobody's intoxicated when we asked them to leave they were all straight, that's the thing." 100 Reliance was also placed upon the later cross-examination of Mr Bracamonte (Transcript, 22 July 2004, T89.19): "Q. Would you say the way this incident developed was really a sequence of events one man going to the aid of another?

Q. Security personnel were going to the aid of security personnel?

Q. And the men in black were going to the aid of men in black?

Q. In the course of people going to the aid of each other that's how the whole thing sort of started and how it developed?

Q. It really started I suggest in a physical sense when you applied directional movement didn't it?

A. Yeah. But it also started too because their behaviour as well." 101 The Plaintiffs relied upon the cross-examination of Mr Ogston to the following effect (Transcript, 23 July 2004, T17.6): "Q. From what you could see it was a case of including the security people and the men in black, it was really a case of those present going to the aid of another. Do you agree with that? Do you understand what I'm saying? The whole thing escalated by one person going to the aid of another person, another person going to the aid of the person who was going to the aid of the first persona [sic] and it was like a chain reaction? A. Yeah. Q. Do you agree with that? A. Yes I do." 102 Mr Bellanto QC relied upon evidence that one or more of the security officers had used "directional force" or "directional movement" towards one of the "men in black" and that this evidence was relevant to the self-defence issue. He complained that the learned Magistrate had not addressed the "directional force" issue in his judgment. His Honour did advert to this part of the evidence in his finding that "it is obvious that there was a conscious effort on behalf of at least one of the security officers to make sure that they were heading in the right direction, so to speak". Mr Bellanto QC complains that this finding did not have regard in an appropriate way to what he submitted was the significance of the "directional force" evidence in the case. 103 Mr Bellanto QC submitted that the evidence raised self defence, including the defence of others being the other "men in black". In these circumstances, the Plaintiffs submitted that self defence was raised and was not negatived beyond reasonable doubt by the prosecution. Further, it was submitted that the learned Magistrate had misdirected himself on the question of self defence so as to constitute an error in law. 104 Mr Lakatos submitted that there was no evidence in the proceedings which gave rise to a consideration of self defence. The assertion was advanced in cross-examination of witnesses but not acceded to by those witnesses. The tenor of the evidence of the security officers so cross-examined was that they had been set upon by the Plaintiffs. The Defendant submitted that this was far removed from any legitimate issue of self defence. 105 Mr Lakatos submitted that the evidence, as it stood, gave no support to the proposition that the Plaintiffs had the belief set out in s.418(2) Crimes Act 1900. Absent such material, the prosecution bore no onus of proof at all. 106 Further, Mr Lakatos submitted that his Honour's concluding comments indicated clearly that this was his view of the evidence. His Honour concluded that "the evidence which has been given both orally and by way of video evidence does not show to me that these persons were acting in self-defence". It was submitted that self defence had not been raised on the evidence and that the learned Magistrate did not fall into error of law with respect to this question. 107 As cases such as Honeysett and Nguyen make clear, self defence may apply to a charge of affray. However, the issue must be raised in the case. This may occur more readily where a limited number of persons are involved in the fight and, perhaps, self defence is raised by way of explanation or otherwise with respect to the actions of one or more persons. That is not the present case. 108 In considering this ground, I have had regard to the entirety of the evidence, including the video tape. I accept the Defendant's submissions with respect to this ground. The evidence did not raise self defence in this case. The cross-examination did not adduce evidence which was capable of raising self defence for the purpose of s.418(2) of the Act. I have considered whether the compilation video tape depicts actions which may have raised self defence in the case. In my view, the tape does not contain material which raises self defence. The evidence in this case points to the three Plaintiffs, in the words of Priestley JA in Nguyen, being persons who wanted to fight. In such circumstances, self defence does not arise.

109 I do not consider that the Plaintiffs' submissions referring to "directional force" demonstrate any error in law on the learned Magistrate's behalf. Properly understood, this evidence related to the touching of one of the "men in black" to point him in a particular direction. The contact in question is depicted in the video tape. Although this contact formed part of a sequence of events leading to aggressive conduct on the part of the three Plaintiffs it did not, in my view, raise self defence with respect to the aggressive conduct of the Plaintiffs which followed. 110 Although my finding with respect to this ground does not depend upon evidence of injuries sustained during the incident, it is not entirely irrelevant to observe that Mr Bracamonte received a broken jaw and facial bruising and was hospitalised for four days (Transcript, 22 July 2004, T60, 62), Mr Ogston received scratches around his neck and a black eye (Transcript, 23 July 2004, T7.50), Mr Heaney received a cut lip and a cut to the forehead (Transcript, 23 July 2004, T34.6) and Mr Bannister sustained blurred vision and bloodshot eyes as a result of fingers being dug into his eyes (Transcript, 23 July 2004, T53-54). Apart from the reference to Mr Bensley's shoulder (see paragraph 81 above), there was no evidence that any of the Plaintiffs had sustained injury. In cross-examination of Constable Qui, Mr Bellanto QC asked (Transcript, 20 July 2004, T55.34): "Q. You notice any of these boys in black in torn clothing?

Q. Did you notice any marks on their body, their lip for example, cut lips, things like that?

A. No I did not." 111 In my view, the evidence in this case did not raise self defence. No error of law has been demonstrated. I reject Ground 4.

Ground 5 - The Magistrate Erred in Finding that What Occurred Would Cause a Person of Reasonable Firmness Present at the Scene to Fear his or her Personal Safety 112 In written submissions filed for the Plaintiffs, it was contended that the learned Magistrate erred in finding that what occurred would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. Mr Bellanto QC submitted that error of law was demonstrated in this respect. This ground was not included in grounds of appeal previously filed for the Plaintiffs. He accepted that, to constitute error of law, it would be necessary to find that the evidence could not support this element of the offence. 113 I have referred earlier in this judgment to the elements of the offence contained in s.93C of the Act. No person of reasonable firmness need actually be, or be likely to be, present at the scene: s.93C(4). 114 Having regard to the oral evidence adduced in the Local Court and having viewed the compilation video tape of the incident, I am satisfied that evidence was adduced which was capable of supporting the finding made by the learned Magistrate. Accordingly, no error of law has been demonstrated in this respect.

Conclusion 115 I am not satisfied that the Plaintiffs have made good any of the grounds alleging error of law in the proceedings before the Local Court. In my view, it was open to the learned Magistrate to find each of the Plaintiffs guilty of the offence of affray contained in s.93C of the Act. I determine under s.55(1)(c) Appeal and Review Act that the appeal of each Plaintiff against conviction is dismissed. 116 The Plaintiffs' summons is dismissed. 117 At the conclusion of the hearing, it was indicated that the parties would seek to make submissions concerning costs after I had published my reasons. In the ordinary course, costs would follow the event and the Plaintiffs would be ordered to pay the costs of the Defendant of the proceedings. However, I will refrain from making any order as to costs until the parties have had an opportunity to make submissions on that issue.

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