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.