The appellant
19 The appellant said that he had a clear recollection of about 80 per cent of what happened from midday on New Year's Eve until 7.00 am on 1 January. He and his friends started drinking at about 6.30 pm. They went to the Gypsy Bar some time after 8.30 pm, stayed there for a short time and then went to another bar. They subsequently returned to the Gypsy Bar at about 3.30 am. He and Black played pool against the deceased and Boag. They had not met previously. Boag made a provocative remark, and at some stage the appellant felt a ball strike him in the back. He concluded that Boag was responsible. The latter was behaving in an aggressive and obnoxious manner. The appellant said that he did not like fighting and did not want to get involved. However an argument started. The appellant went to stop it. Boag pushed Christopher Culshaw. The appellant suggested that they leave the bar, but the argument continued. Security personnel asked the appellant and his friends to leave. Black, the appellant and the Culshaw brothers left in that order. When they reached the street they discussed how they would go home. The appellant had no money. Peter Culshaw left the group. Christopher Culshaw said that he did not want to go just yet. His Honour cited the following passage from the appellant's evidence:
"Could you see any reason why he [Christopher Culshaw] would remain there? --- No, because you know - the obvious thought of, you know, maybe he was waiting for them. But I don't think he would because I've never seen him in a fight before and I've never seen him be aggressive before, so I didn't think much of it. --- Then I said, "Let's go", and he goes "No, just wait a minute", and I said "Okay". I seriously thought nothing was going to happen, you know, and I was talking to Stuart, and Peter was still off to the left somewhere, I don't know what he was doing."
20 The deceased and Boag then emerged from the bar. One of them made a remark. Culshaw replied to the remark, and Boag hit him in the face. Culshaw struck back. His Honour then quoted the following passage from the appellant's evidence:
"and then I went, oh, man, you know, and then I went over to stop it and [the deceased] was coming over closer to it, because they sort of came out and they were probably a metre apart.
--- I would like to resolve the situation, to finish it.
--- I was going to try to say look, you know, try and pull them apart and to stop it.
---[the deceased] was coming across and I got in the middle of that and I kept him away, I just pushed him.
--- And I kept him away like that, and I turned around to resolve the situation and break it up, and I said "Look, guys, stop it", and before you know - just as I had finished that [the deceased] was around - come from behind and had me in a headlock like this.
--- And he punched me about two or three times to the side of the head … my right [side of the head].
--- I defended myself by grabbing him and - like this and turning and sort of pushing him and punching him … in the face …
--- punching him about three times, and he had stepped back from that, yes.
--- Then I looked back over and Chris and Jason had finished.
--- and then [my memory] starts to get very scratchy from there."
21 The appellant said that he remembered being at the bus interchange and had memory flashes of the deceased yelling abuse, although he could not remember the exact words. He said that he was "scared and angry" because he had been punched in the head a few times and did not like the situation that he was in, having been abused all night, "trying to be the nice guy and stay out of it, and try and break things up, and it just not working." He conceded that the deceased had not been aggressive towards him but said that he had been aggressive towards Christopher Culshaw. He repeated that his purpose in approaching Culshaw and Boag was to stop the fight and that when he told them to break it up, he was put in a headlock by the deceased and punched several times. In re-examination he said that his memory became hazy after he was struck.
22 His Honour dealt with the issue of self-defence at pars 33 - 36 (AB 504 - 505) as follows:
"33. The evidence to support the claim of self-defence in the first fight is, in my view, insubstantial, inconclusive and unpersuasive. It does not raise a reasonable possibility that the accused at the time believed that it was necessary to do what he did in his own defence. At its very highest it might go to support a defence of justification whereby the accused used reasonable force to put an end to an unlawful assault being inflicted on Christopher Culshaw by Boag. But that is not how the defence case was put and the issue whether the assault by Culshaw on Boag was unlawful was not raised as an issue in the case.
34. I do not accept the accused's evidence that he recalls his state of mind at the time of the first incident. It is clear that he discussed the events with some of the others during the course of the next day or so. Much of what he claims to remember is likely to be the result of what others told him.
35. On the issue of self-defence the prosecution has to exclude the possibility that the accused believed that it was necessary for him to do what he did to defend himself from attack. The belief has to be based on reasonable grounds. The subjective belief, however genuine, is insufficient of itself and must be measured against the standard of reasonableness, that is to say, the prosecution has to exclude the possibility that the circumstances were such as to cause a reasonable person in the position of the accused to believe that he had to use the force he did use in order to defend himself. In my view, the evidence establishes that it was not reasonable for a person in the position of the accused to believe that he was under attack by the deceased at the commencement of the first incident. It may have been reasonable for him to contemplate the possibility of attack by the deceased but in that situation it was not reasonably necessary for the accused to strike first. In any event, the accused does not make that claim. He says that he struck first in order to stop the deceased interfering with his attempt to stop the fight between Culshaw and Boag. It was only when the deceased (either in his own self defence or in defence of Culshaw or in retaliation) then placed him in a headlock that he claimed that he struck the deceased in order to defend himself. I do not accept his claim. In my view, the accused intended to participate in an unlawful fight and cannot claim justification for continuing to participate in the fight because of the conduct of the deceased. I would add here that it is difficult to see how the accused could have punched the deceased in the head whilst the deceased still had the accused in a headlock. I would add also that a headlock is more consistent with a defensive measure than a punch to the head.
36. The accused fails on the issue of self-defence in relation to the first incident."
It may be that the reference to the deceased having acted in defence of Culshaw should have referred to his acting in defence of Boag, but that is of no significance for present purposes.
23 The appellant's case was that the deceased had him in a headlock and was punching him and that he defended himself by struggling and punching him. Miles CJ took a broader view of the incident, noting that the appellant had struck first. We understand his Honour to have been referring to the appellant's having pushed the deceased as the latter walked towards the fight in which Christopher Culshaw and Boag were involved. As his Honour said:
"He (the appellant) says that he struck first in order to stop the deceased interfering with his attempt to stop the fight between Culshaw and Boag."
24 Counsel for the appellant disputed the correctness of his Honour's assertion that he had struck first, but this was based upon the view that his Honour was not referring to the pushing incident, but to the subsequent punching said to have been in self-defence. We do not accept that view of his Honour's meaning. Counsel referred to a number of passages as relevant to this aspect of the case. At AB 92, Black said that he recalled seeing the appellant in a headlock and being hit. He broke away and "starting fighting". Black was asked if he had seen how the appellant had come to be in a headlock. He said that he had not. At AB 109, in his cross-examination Black said that he only remembered the appellant being in a headlock and being hit; he did not know by whom. At AB 226, Reia Hohoi said that she saw that "they had his head in a lock and were punching him in the head." As her evidence was to the effect that each of the persons who was in a headlock was being assaulted by more than one assailant, she may have been describing another incident or she may have assumed that a bystander was involved. None of this evidence detracts from the appellant's admission that the first application of force between him and the deceased was the pushing to which we have referred.
25 The appellant submitted that his Honour made a number of other unsustainable findings, the first being that:
"When the deceased walked towards the appellant, the appellant struck the head of the deceased and there was a brief physical altercation between them." (AB 494/4)
26 The passage of his Honour's reasons said by the appellant to constitute such a finding is par 4, in which his Honour said:
"A fight ensued between the two groups. Peter Culshaw punched Jason Boag. The deceased walked towards them and in the direction of the accused. The accused struck the head of the deceased and there was a brief physical altercation between them."
27 This description is at the start of his Honour's reasons, and is by way of a general summary of the events constituting the first incident. The criticism appears to be that his Honour was wrongly asserting that the appellant had struck the deceased in the head immediately after the latter advanced towards him, and without any justification. However the subsequent summary of the evidence in pars 33-6 set out in par 22 of these reasons demonstrates that his Honour was aware that the appellant's case was that he had initially pushed the deceased and struck him only after he had subsequently been placed in a headlock. Whatever is said to have been suggested by the general summary in par 4 does not, in our view, detract from his Honour's detailed reasoning and findings as set out in pars 33-36 of his reasons.
28 Clearly, his Honour was recording the fact that there had been a blow to the deceased's head in the course of the first incident. The fact of such a blow was, and is, critical to the appellant's case concerning causation of the fatal injury. It is said that the deceased suffered a head injury in the first incident and that it may have caused his death. The alternative sequence of events is that he died as a result of an injury caused in the second incident. Although the appellant may have argued faintly to the contrary, self-defence is clearly not available in the latter case. The appellant admitted striking the deceased in both incidents. For the reasons set out above, we do not consider that his Honour failed to appreciate the appellant's case with respect to self-defence, nor do we consider that his Honour made an unsustainable finding as contended by the appellant.
29 The second allegedly unsustainable finding was that:
"The appellant said he struck the deceased first or that he did in fact strike the deceased first (AB 504-5/35)".
30 As we have said in par 24 above, it is clear to us that when his Honour referred to the appellant "striking first" he was referring to the pushing of the deceased. This was consistent with the appellant's own evidence.
31 The third allegedly unsustainable finding was that:
"The appellant's recollection of his state of mind at the time of the first incident was not his own, but the product of what others told him (AB 504/34)".
32 In par 34 his Honour:
• rejected the appellant's evidence as to his state of mind at the time of the first incident;
• pointed out that the appellant had discussed the events with others during the course of the next day or so; and
• observed that much of what the appellant claimed to remember was likely to be the result of what others had told him.
33 The appellant's criticism conflates these three aspects. There was good reason for his Honour to have doubted the accuracy of the appellant's recollection. He conceded that he had little memory of events immediately after the first incident and spoke of "flashes" of recollection. He was certainly intoxicated at the time. It is also undisputed that the appellant and his associates discussed the events in question shortly after they had occurred. Further, the appellant's evidence as to his state of mind was not particularly convincing, amounting to little more than an assertion that he had punched the deceased in self-defence during the first incident. There was no real suggestion that he feared for his own safety at the time at which he pushed the deceased or even when he was in the headlock. At AB 383 this passage appears:
"All right, well then after you were struck in that way by Bradley Stewart, do you recollect the next thing you remember? --- I defended myself by grabbing him and - like this and turning and sort of pushing him and punching him - punching him in the face ---."
34 He said subsequently that at the time of the second incident he was "still scared and angry" (AB 384). He said at AB 385 l 43 and 44 and AB 386 l 1 that he had no idea what his intention was in following the deceased as he moved away after the first incident. In cross-examination at AB 394 this passage appears:
"Mr England, are you really suggesting to this court that you were acting in self-defence when you assaulted Mr Stewart up on the bus interchange, is that what you're saying? --- I can't remember the full actions of it all. I can't remember how we got there, I can't remember any of that. But I never ever wanted to physically go there and hurt him."
35 At AB 395 ll 31 - 33 he said that he could not remember whether he chased and punched the deceased because he was angry following the first incident. At AB 396-7 he again asserted that he was "scared" at the time of the second incident. At AB 398 ll 26 - 29 he said, concerning the first incident:
"I was there for myself and I tried to stop the fight. I got involved by trying to defend myself and that's how it carried on."
36 At AB 407 ll 39-45 - 408 l 1 this passages appears:
"And to be fair to Mr Stewart (the deceased), you're not suggesting that he did anything obnoxious or aggressive downstairs at all, are you? --- No, they were just - I know he was involved in the argument with Chris, that was the only thing I really saw.
But as far as you can remember, he wasn't involved in any aggressive, obnoxious behaviour at all that night? --- He wasn't ---.
--- certainly not to you ---? --- to me, no."
37 At AB 408 ll 16 - 45 he was asked about the first incident. The relevant passage is as follows:
"How did you get involved? --- I went over to stop it.
Why did you do that? --- Because a friend was involved in a fight and I wanted to stop it.
Yes. And you didn't think Mr Culshaw could take care of himself? --- It wasn't a matter of that, I just wanted to stop the fight.
Right. What were you going to do? --- Just to stop it. Say, stop and pull them apart.
Okay. You heard Chris Culshaw give evidence that it was one hit, one hit? --- Yes.
Well, wasn't it stopped then? --- Well, it was one hit, one hit, he stumbled back. They come back together but - I got side-tracked pretty quick. I took probably four steps over which is, you know, pretty quick. And then I was in it and I went to stop it and that's when I was in the headlock.
But you've got a good memory of that. How did you come to be in a headlock? --- I was just facing Bradley Stewart - not, Bradley Stewart, Jason Boag and Chris and that, and I was coming up to stop it. I said, "You know that's enough guys, let's break it up". You know, some words like that. And then I was - the hand come over the back of my neck.
So you were attacked from behind? --- Yes.
And you remember that? --- Yes.
And then you were hit in the head a few times? --- Yes."
38 The above extracts are by no means the only evidence relevant to this issue, but they are sufficient to demonstrate that his Honour was quite justified in rejecting the appellant's assertion that he recalled having a belief that he had to defend himself. There is also no basis for criticism of his Honour's observation that much of the appellant's evidence concerning events on that night was likely to be the result of what he had been told by others.
39 The next allegedly unsustainable finding was said to concern:
"… the appellant's claim to have struck the deceased only when the latter placed him in a headlock". (AB 504/35)
40 It was asserted that Miles CJ treated this proposition as "unbelievable". The relevant passage in par 35 of the reasons for judgment is as follows:
"(The appellant) says that he struck first in order to stop the deceased interfering with his attempt to stop the fight between Culshaw and Boag. It was only when the deceased (either in his own self defence or in defence of Culshaw or in retaliation) then placed him in a headlock that he claimed that he struck the deceased in order to defend himself. I do not accept his claim."
41 We have already observed that the second reference to Culshaw should be to Boag. His Honour proceeded upon the basis that the appellant had "struck" first in the sense that he had pushed the deceased. The proposition that his Honour here rejected was that the appellant had struck the deceased in order to defend himself, not that he had struck him "only when the latter placed him in a headlock".
42 It was also submitted that his Honour had found, unsustainably, the proposition that:
"… the deceased did no more than place the appellant in a headlock" (AB 504/35).
43 There is no finding in par 35 that the deceased did no more than place the appellant in a headlock.
44 It is, we think, important to view his Honour's findings in the context in which they were made. His Honour considered the events leading to the alleged headlock and subsequent exchange of punches. In his written submissions the appellant also argued that the following findings, amongst others, were unsustainable:
• "The evidence. to support the claim of self-defence did not raise a reasonable possibility that the appellant believed at the time that it was necessary to do what he did in his own defence (AB 504/33);
• viewed objectively, the appellant's belief that he was under attack by the deceased at the time of commencement of the first event was unreasonable (AB 504/33);
• although it may have been reasonable for the appellant to contemplate the possibility of such an attack, it was not reasonably necessary for him to strike first (AB 504/35); and
• the appellant intended to participate in an unlawful fight in the first incident (AB 504/35)."
45 Before considering these submissions, which really go to his Honour's ultimate conclusion as to self-defence, we should firstly refer to the leading case concerning that matter. In Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 the majority (Wilson, Dawson and Toohey JJ, Mason CJ concurring) said (at 661 - 664):
"The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in that form, the question is one of general application and is not limited to cases of homicide. Where homicide is involved some elaboration may be necessary.
Murder consists of an unlawful killing done with intent to kill or to do grievous bodily harm. Recklessness may be put to one side as having no apparent relevance in the context of self-defence. Manslaughter also consists of an unlawful killing, but without such an intent. A killing which is done in self-defence is done with justification or excuse and is not unlawful, though it be done with intent to kill or do grievous bodily harm. However, a person who kills with the intention of killing or of doing serious bodily harm can hardly believe on reasonable grounds that it is necessary to do so in order to defend himself unless he perceives a threat which calls for that response. A threat does not ordinarily call for that response unless it causes a reasonable apprehension on the part of the person of death or serious bodily harm. If the response of an accused goes beyond what he believed to be necessary to defend himself or if there were no reasonable grounds for a belief on his part that the response was necessary in defence of himself, then the occasion will not have been one which would support a plea of self-defence. That is to say, the killing will have been without justification or excuse and it will be for the jury to determine how it must be regarded. If it was done with intent to kill or to do grievous bodily harm, then unless there was provocation reducing it to manslaughter, it will be murder. In the absence of such intent it will be manslaughter … .
… the whole of the circumstances should be considered, of which the degree of force used may be only part. There is no rule which dictates the use which the jury must make of the evidence and the ultimate question is for it alone. The trial judge should also offer such assistance by way of comment as is called for in the particular case. No doubt it will often also be desirable to remind the jury that in the context of self-defence it should approach its task in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection.
There is, however, one situation which requires particular mention. It should, we think be regarded as raising only evidentiary matters to be considered in arriving at an answer to the ultimate question … . Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it. Indeed, even in circumstances in which the accused was not the original aggressor, retreat in the face of a threat of violence before resort to force may be relevant to the belief of the accused or the reasonableness of the grounds upon which the accused based his belief. There is, however, no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. It is a circumstance to be considered with all the others in determining whether the accused believed upon reasonable grounds that what he did was necessary in self-defence … .
… Whilst in most cases in which self-defence is raised the attack said to give rise to the need for the accused to defend himself will have been unlawful, as a matter of law there is no requirement that it should have been so. … Thus, for example, self-defence is available against an attack by a person who, by reason of insanity, is incapable of forming the necessary intent to commit a crime. It is, however, only in an unusual situation that an attack which is not unlawful will provide reasonable grounds for resort to violence in self-defence. The whole of the surrounding circumstances are to be taken into account and where an accused person has created the situation in which force might lawfully be applied to apprehend him or cause him to desist - where, e.g., he is engaged in criminal behaviour of a violent kind - then the only reasonable view of his resistance to that force will be that he is acting, not in self-defence, but as an aggressor in pursuit of his original design. A person may not create a continuing situation of emergency and provoke a lawful attack upon himself and yet claim upon reasonable grounds the right to defend himself against that attack."
46 The task facing us is somewhat different to the usual case of an appeal against a criminal conviction. In this case, the learned trial Judge sat alone without a jury. In such cases, when there are reasons for judgment, it should be easier to determine whether or not the trial has miscarried than is the case with a jury trial. In some cases, a judge's reasons will disclose errors or weaknesses in judgment which, had they been committed by a jury, would have been unreviewable (save perhaps on the "unsafe and unsatisfactory" ground). Nonetheless, a judge sitting alone is in the position of a jury and may, provided he or she acts rationally and on the evidence, treat the evidence in exactly the same way as a jury might have done.
47 Where self-defence is raised, the tribunal of fact must eventually determine whether it is satisfied that the accused did not act in self-defence. It must be satisfied of that beyond all reasonable doubt if it is to convict. In some cases the tribunal will have the assistance of evidence from the accused, although that is by no means always the case. It may attribute such weight to that evidence as it considers to be appropriate. It should not approach the evidence with any particular prejudice against it, nor should it treat it as beyond question. That implies the right to reject or refuse to act upon it, or part of it. Of course, care must be taken in that process. If a rejection or partial rejection of evidence appears to be arbitrary and unjustifiable having regard to the evidence in the case as a whole, including possible impressions made by the witnesses upon the tribunal, then the "unsafe and unsatisfactory" ground may be invoked.
48 It seems to us that his Honour adopted an approach of careful scepticism as indicated in pars 13 - 15 of his reasons (set out in par 45 above). Once it is accepted that his Honour's rejection of the appellant's assertion that he consciously acted to defend himself was justifiable on the evidence, the position, at best for the appellant, was that he was standing near Culshaw and Boag as they fought. The deceased approached, and the appellant pushed him without any provocation or other justification. He had no reason to believe that the deceased posed any threat to him having regard to his previous conduct, nor that he proposed to offer any violence to Culshaw.
49 As his Honour pointed out, it is not clear why the deceased applied a headlock to the appellant. He may have perceived it to be in self-defence or in defence of Boag, or it may have been in retaliation for the pushing. Similar comments apply to any subsequent striking. By pushing the deceased the appellant had indicated an intention to use force to stop him from doing something that he apparently wanted to do, whatever that may have been. When, immediately thereafter, the deceased grabbed and hit the appellant, as the appellant alleges, it seems likely that he was responding to the appellant's offer of violence. The appellant's conduct after the first incident was also relevant. To have followed the deceased in company with Culshaw and then to have assaulted him in the way described in the evidence bespoke hostility towards him. It is possible that the hostility was provoked by the alleged headlock and punches, but that was a matter for the tribunal of fact to assess. Having regard to the whole of the evidence, including the absence of any provocation or violence by the deceased prior to his being pushed by the appellant, the unsatisfactory evidence from the appellant and the latter's conduct in the second incident, the tribunal of fact might well have been satisfied beyond all reasonable doubt that the appellant was not acting in self-defence at the time at which he struck the deceased during the first incident.
50 As the majority in Zecevic said at 663:
"Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it."
51 At 664 their Honours said:
"A person may not create a continuing situation of emergency and provoke a lawful attack upon himself and yet claim upon reasonable grounds the right to defend himself against that attack."
52 As it clear from par 35, his Honour did not accept the appellant's evidence that he struck the deceased in order to defend himself. He concluded that the appellant had intended to participate in an unlawful fight. We consider that his Honour was justified in reaching that conclusion.