COLOSIMO & ORS. V. DIRECTOR OF PUBLIC PROSECUTIONS (NSW) [2006] NSWCA 293

COLOSIMO & ORS. V. DIRECTOR OF PUBLIC PROSECUTIONS (NSW) [2006] NSWCA 293 - NSWCA 2006 case summary — Zoe

[14]

CIRCUMSTANCES 5 In the early hours of Monday 18 November 2002, the three appellants, who are brothers, together with a Mr. Bensley and three women, attended the Lagoon Bar at the Star City Casino. The charges on which the appellants were convicted arose out of an incident on that occasion involving security officers of the casino, in particular Messrs. Wood, Webb, Bannister, Bracamonte, Heaney and Ogston. The prosecution case was based on oral evidence from a number of witnesses, including the security officers, and a compilation video of the incident. The appellants did not give evidence. 6 The prosecution evidence was to the following effect. Mr. Webb assessed one of the appellants as being intoxicated, and directed him to leave the premises. The two other appellants objected to this, and they screamed at him and racially abused him. Mr. Webb then directed them all to leave, and two of the appellants then further abused him and invited him outside to fight. As the appellants were moving towards the door, one of them said to Mr. Bracamonte " well move me", and Mr. Bracamonte pushed him towards the door. Mr. Bracamonte was then pushed hard from behind by another of the appellants, punches were then thrown at him, he was tackled from behind into some tables and chairs, put in a headlock and bitten in the back of the head, and punched and kicked to the head. He was left with bruising of the face, a fractured jaw leading to the removal of two wisdom teeth, scarring on the inside and outside of his mouth, a bite injury to the back of his head and a laceration over his left eye. There was a general fracas involving the three appellants and security officers that lasted about one and a half minutes. Mr. Ogston observed Mr. Bracamonte and one of the appellants hitting a table and land on a stage, with the man landing on top of Mr. Bracamonte. Mr. Ogston tried to pull the person off, but as he did so, he was himself grabbed from behind around his throat. He was not able to breathe and started to lose consciousness. He received scratches around his neck and a black eye. There was also evidence of injuries to Mr. Bannister and Mr. Heaney. 7 The first appellant was charged with maliciously inflicting grievous bodily harm on Mr. Bracamonte, assault occasioning actual bodily harm on Mr. Bracamonte, assault on Mr. Wood, and affray. The second appellant was charged with maliciously inflicting grievous bodily harm on Mr. Bracamonte, assault occasioning actual bodily harm on Mr. Bannister, assault occasioning actual bodily harm on Mr. Heaney, and affray. The third appellant was charged with assault occasioning actual bodily harm on Mr. Ogston, and affray.

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SUBMISSIONS 14 Mr. Jackson QC for the appellant submitted that plainly this was not a case of premeditated attack by the appellants, and that there was clear evidence of each of the appellants going to the aid of each other either to prevent themselves being deprived of their liberty or to prevent others being deprived of their liberty, or to defend themselves or to defend the others, within s.418(1)(a) and (b); and that this was supported by the evidence referred to by the primary judge, particularly the evidence of Mr. Ogston in par.[101] of the primary judge's judgment. Self-defence is not excluded merely because the conduct to which an accused is responding is lawful: see s.422. 15 He submitted that, if there was evidence raising self-defence in relation to just one of the accused, then, because of the identification problem which resulted in dismissal of the other charges, this would be sufficient to raise self-defence in relation to all of them. 16 Mr. Jackson submitted that all that was needed to raise self-defence was evidence capable of raising a reasonable doubt in the mind of a jury: Zecevic v. Director of Public Prosecutions (1987) 162 CLR 645 at 665; Douglas v. R [2005] NSWCCA 419 at [84]-[100]; R v. Duncan [2006] QCA 46 at [2], [11], [31]-[34]. Accordingly, the primary judge was in error in finding that the evidence did not raise self-defence. 17 To the extent that the primary judge relied on the words of Priestley JA in Nguyen at 412 to the effect that self-defence did not arise in the case of a person who wanted a fight, Mr. Jackson submitted that this was an error because these words concerned the common law position, whereas here the question was whether the statutory words applied, and in relation to those words the concept of "wanting to fight" had no application; and in any event, he submitted, the Magistrate had not made findings of fact to the effect that each of the appellants wanted to fight. 18 Mr. Jackson submitted that the Magistrate was in error in the way he dealt with self-defence. If what he said was interpreted as meaning that the evidence was insufficient to raise the issue of self-defence for consideration, he was in error for the same reasons as the primary judge; and if this was interpreted as a finding that the defence was not made out, he was in error in reversing the onus of proof.

[62]

(5) There is nothing in the evidence to suggest that the resort to violence by the other appellants was preceded by any actions by security officers that were, or appeared to be, other than to promote the departure of the appellants and/or to defend themselves or others. So far as the evidence went, the actions of security officers were not such as could give rise to a belief that could be reasonably held that any of the appellants were in need of defence by himself or others; that is, that any appellant had to do any more than stop fighting in order to eliminate any risk of harm against which defence was necessary. That this was so is confirmed by the circumstance that none of the appellants was observed to have received any significant injury, while one of the security guards received very serious injuries and others of them received significant injuries. 21 In those circumstances, in my opinion the evidence relied on by Mr. Jackson was not sufficient to raise self-defence. 22 The assertion by one of the appellants to a police officer that the security officers "started it" could not, in the circumstances of this case, suggest a belief that the security officers "started it" in any sense relevant to self-defence: all the evidence was to the effect that violence was initiated by one of the appellants, in circumstances where there was no risk of harm being visited upon any of the appellants. A belief that the security officers started it, in the sense that they or one of them did something that could make defence of oneself or others necessary, could not be inferred as something reasonably possible in the objective circumstances; so in the absence of evidence from the appellants, there was no evidentiary basis for a view that such a belief was reasonably possible. 23 The evidence about the incident being a series of events in which each of the appellants was going to the aid of other appellants similarly does not raise self-defence, where the objective circumstances were such that a person in the position of any of the appellants could not reasonably believe that violent action was necessary as a matter of defence to prevent harm being done to any of the appellants or to prevent unlawful deprivation of liberty: on the evidence, all the security officers were doing, prior to the resort to violence by all the appellants, was initially to seek the lawful removal of the appellants from the premises, and thereafter to defend themselves or others. And once all the appellants had resorted to violence, they were all guilty of affray. 24 In the circumstances of this case, for the appellants to have an evidentiary basis for a reasonable doubt about their beliefs as to what was necessary, and as to their perceptions of circumstances in which their responses may have been reasonable, some evidence would have been required from them as to their actual beliefs and perceptions. In the absence of such evidence, the defence of self-defence generally depends upon what beliefs and perceptions of persons in the position of the accused persons may reasonably have had, having regard to objective circumstances of which there was evidence; and for the reasons I have given, the objective circumstances of which there was evidence in this case did not support a reasonable possibility of the existence of relevant beliefs and/or perceptions. 25 For those reasons, in my opinion the primary judge was correct in holding that the evidence did not raise self-defence; and similarly, no relevant error is shown in the decision of the Magistrate. 26 For those reasons, in my opinion the appeal should be dismissed with costs. 27 IPP JA: I agree with Hodgson JA. **********

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