HIS HONOUR: This is an appeal against a conviction recorded and a sentence passed by Magistrate Robert Williams sitting in the Newtown Local Court on 29 July 2014.The accused was charged that on 15 February 2014 at Newtown in this State he did assault Matthew O'Neill and occasioned actual bodily harm to him. That is an offence contrary to s 59(1) of the Crimes Act 1900. The maximum penalty for that offence is five years imprisonment. When dealt with in the Local Court, as the current matter was, the maximum penalty that can be imposed by that Court is imprisonment for two years.
The offence in question occurred in the Newtown Hotel on the corner of King Street and Watkins Street, Newtown. The appellant had gone there with a number of work colleagues to celebrate the birthday of another work colleague, Mr Josh Cailotta. Amongst those in the party which the appellant joined were Ms Rebecca Goodman and Ms Jessica Peroy. This group of workmates worked at the Annette Kellerman Aquatic Centre at Marrickville. The inference to be drawn is that they were either lifeguards at that pool or otherwise pool employees. The complainant, Matthew John O'Neill, had gone to the same hotel with 10 of his brother's friends to celebrate one of those friend's 21st birthday. Each of the appellant and the complainant had gone to this hotel to celebrate a birthday. The appellant, himself, at the time of the offence alleged was 21 years old. He had turned 21 on 21 January 2014.
There was a confrontation between Mr O'Neill and the appellant, which led to the appellant's punching the complainant in the face. In the Local Court it was conceded that there was an assault occasioning actual bodily harm. That assault, it was conceded, was committed by the appellant. The issue raised for the determination of the learned magistrate was whether the Crown had negatived a defence of self-defence. When a party raises self-defence it is for the Crown to disprove any reasonable possibility that such defence has been established.
The offence occurred at approximately 10:57:07. The appellant was on a dance floor in the hotel dancing with three of his colleagues in what has been described as a circle. The complainant was seeking to pass that group of dancers holding in his hand a drink. There was a minor collision or bump between the complainant and the appellant which led to at least a part of the complainant's drink being spilt. Evidence was called from the complainant and CCTV footage was shown in the Crown case. There were two sets of CCTV footage, one taken from camera 9 which was placed in closer proximity to the event than the other camera in question. The other camera in question was numbered 13. The CCTV film from camera 9 is coloured, the CCTV film from camera 13 is in black and white. I could not discern anything from the CCTV from camera 13 nor could either the solicitors representing the parties today. However, the learned magistrate appears to have gone over the film minutely and I will shortly describe what he said about it. However, the film itself, is not determinative of the issue currently before me.
In the Crown case was also tendered an electronic recorded interview with the appellant in which he admitted striking the complainant, but stating that he only did so essentially because he was defending himself or had been provoked, and in which he freely conceded that he had a poor memory of the event because of the amount of alcohol that he had consumed. The appellant told the police in the record of interview that he was "pretty heavily inebriated" at the time, that he had had maybe seven or eight schooners of Coopers Green Ale. He had commenced drinking about 7.30pm. His last drink was consumed five minutes before the assault.
The complainant had attended the hotel about 8.20, or perhaps 8.40; certainly before 9pm. Between that time and the assault he had consumed about four beers and two bourbon and cokes. When asked how he was feeling after his consumption of alcohol the complainant said this:
"Q. How were you feeling as a result of those beverages?
A. I could feel it but I wasn't intoxicated to the point where I couldn't move or anything, but I was okay".
The inference to be drawn is that the complainant himself had consumed a fair amount of alcohol and although not catatonic, or "legless", he had been affected by the alcohol that he had ingested.
Of the CCTV footage the learned magistrate said this:
"As I have stated earlier, there was a bump around 10:56:45 and following that, there was the interaction between the victim and the defendant. I note that the Court has closely considered the movement of the victim, because of the inability to properly assess the movement of the victim from camera 9, which was shown in Court and submitted on. It would appear that there was some advancement by the victim, during the course of the interaction. However that advancement was limited or minimal. It is clear on camera 13, that from 56:54 the victim starts to move away, which he does approximately for the next second. His back is to the defendant. Obviously due to something, he has then turned back and he has then advanced slightly towards the defendant, but then remained stationary. He was, at that stage, not that close to the defendant. It would appear to be, on the evidence from the other parties [that] it was approximately one metre. He remained, at that stage,...stationary, until 57:06 and then again he moved slightly, which on viewing the two angles of the CCTV, was in the direction of the defendant. After about approximately 57:07, there appears to be a physical altercation and what looks like a punch which is thrown by the defendant.
In the vision which is portrayed on camera 9, at 56:58, a movement by the victim towards the defendant, again is noted because he appears into the screen. It is also noted that the defendant moves towards the victim. At 57:02, the defendant again moves towards the victim and raises his hands, although they are placed together, facing each other they were not clasped at his chest. At 57:03, his hands are then not together but he has raised them at chest level, facing the victim. Thereafter, for the next one or two seconds, you can see the victim does raise what appears to be a drink. What is a white object that looks like a drink holder. That is moved towards the chest of the defendant.
Then it appears that both parties moved slightly towards each other. Again the victim raises, still has the drink. The defendant then appears to react by moving his right hand. The victim moves backwards and then shortly after that is apparent that there is a punch thrown by the defendant towards the victim".
On the learned magistrate's analysis of the movements there were three advances by the complainant towards the appellant before the appellant threw the punch which hit the complainant on the left eyebrow.
It is patently clear from the CCTV from camera 9 that there was a conversation occurring, or perhaps a "verbal altercation" might be more appropriate, between the complainant and the appellant. According to the complainant's evidence-in-chief he said to the appellant, "Are you going to buy me a new drink?" According to the complainant's evidence-in-chief the appellant said to him, "What are you going to do about it?" According to the complainant the appellant then threw the punch.
In cross-examination it was put to the complainant that he said to the appellant, "Hey mate, you spilled my fucking drink". The complainant replied to that, that he believed his words were, "Hi, you spilled my drink". He denied being hostile towards the appellant and denied that the appellant said to him, "Sorry mate, I didn't mean it, but it's a dance floor. It's going to happen." or words to the same effect. He also denied using any profanity when speaking with the appellant. This was then put to the complainant:
"Q. What I put to you is after you'd said to the accused, 'Hey mate, you spilled my fucking drink', you turned around and went to walk away and then when he replied to you in the terms that I've suggested to you, you turned back around to him. You said, 'What did you fucking say, mate?'. You said that?
A. I say that didn't happen".
When it was suggested to the complainant that he pushed the appellant the complaint was unable to remember any such push.
Ms Rebecca Goodman gave evidence that the complainant said to the appellant, "Hey mate, you spilled my fucking drink". She also said that the complainant said that in an aggressive manner. She said that the response made by the appellant was in, "more of a jovial manner". She then again averred on oath that the complainant seemed aggressive towards the appellant and then he went to push him. She then gave evidence of further pushing. She said that she had known the appellant for between two and three years, that he was an easy-going chap, that he was really polite to other people, and she had never seen him being aggressive towards anybody. It is important to note that Ms Goodman was a driver for a group of people that evening and had had only one beer shortly after she arrived at the hotel about 7pm. On the evidence before me, she was the most sober of those called to give evidence.
Ms Jessica Peroy arrived at the hotel around 7pm. She had consumed four or five drinks. She admitted that she was "slightly intoxicated", but otherwise described herself as "pretty sober". She was 24 years old at the time of giving evidence on 16 July 2014. In her evidence-in-chief she said this:
"They [her friends] were dancing around in a circle. Then the guy [the complainant] started walking through the dance floor area, he had a drink in his hand, our group was dancing in a circle and his drink got knocked and spilt a little bit. Then he turned around to face the circle, looked at Jack Healy and said, 'You spilt my drink'. Jack said, 'Sorry, it's a dance floor, maybe just watch out'."
She said that the complainant seemed to be a bit upset and a bit angry. She said that the appellant acted apologetically, and after apologising, turned back to join the group of dancers, but the complainant appeared to her, from what next happened, not to be happy with the appellant's response. She said that the complainant kept looking at the appellant and was trying to obtain his attention, and was talking to him, but she could not remember what was then said. Again, she talked of various advances by the complainant and the appellant, and eventually of the appellant's striking the complainant. She described the appellant as pretty happy, a man who always was having a good time, and a person who, to her knowledge, was not aggressive. She had known the appellant for about two years.
In cross-examination, she agreed that she heard the complainant say, "You spilt my drink", and she also said that she did not hear any swear words being exchanged, which is inconsistent with the testimony of Ms Goodman. Further in cross-examination, Ms Peroy said that the complainant, "didn't really want to let that go", meaning that he wanted to persist with his conversation about the minor spillage of his drink with the appellant. Again, she spoke of each of the men pushing at each other prior to the appellant's striking the complainant with his closed fist.
The learned magistrate correctly directed himself in accordance with R v Katarynski [2002] NSWSC 613 and Colosimo v DPP [2006] NSWCA 293. Self-defence is now regulated by s 418 of the Crimes Act 1900. Section 418 does not represent the common law, as was stated by the High Court of Australia in Zecevic v DPP (Vic)(1987) 162 CLR 645. The questions to be considered by the tribunal of fact when self‑defence is raised are: firstly, is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself and, secondly, if so, is there also a reasonable possibility that what the accused did was a reasonable response in the circumstances as he or she perceived them. It has been held that the first question is determined from a completely subjective point-of-view, considering all the personal characteristics of the accused at the time he or she carried out the conduct. The second question is determined by an entirely objective assessment of the proportionality of the accused's response to the situation the accused subjectively believed he or she faced. It is for the Crown to negative self‑defence: it must prove beyond reasonable doubt either that the accused did not genuinely believe that it was necessary to act as he did, or that what the accused did was not a reasonable response to the danger as he perceived it to be. The learned magistrate answered both of those questions in favour of the Crown and against the accused. I have reached a different conclusion.
The learned magistrate said that he was not satisfied that the possibility existed that it was the belief of the accused that it was necessary to defend himself. In my view, the finding should have been otherwise. The appellant was quite intoxicated. Intoxication clouds one's judgment. He was confronted, I accept, by a man who was acting aggressively over a relatively minor spillage of drink when he approached too close to the dance floor. The complainant approached the appellant three times. There was pushing by each of the two men. The pushing did not result in an ending of any verbal conflict. On the last occasion the complainant approached the appellant with his drink raised towards the appellant's chest. The appellant may have believed that the drink was about to be thrown on him or at him or that it might be used to strike his body. Rashly, because of his intoxication, he believed it was necessary to stop the altercation that was occurring by throwing a punch. I accept that subjectively the appellant believed that his conduct was necessary in order to defend himself.
However, the response of the appellant must have been reasonable on an objective basis. In that regard I have determined that the force used by the appellant was excessive in the circumstances. It was excessive because his judgment was clouded by his alcohol consumption. In making the objective assessment I have to disregard his intoxication. He could have stepped backwards. It appears from the CCTV footage that a lady with whom the appellant was dancing sought to draw him back when the complainant last approached towards him but did so unsuccessfully. He could have backed away. It is highly likely that that lady would not have objected or stood in his way.
The CCTV footage clearly shows, as the learned magistrate pointed out, that the defendant was a much larger and more robust person than the complainant. He was both taller, wider and much better built than the complainant. He could have put the complainant in a "bear hug" which would have stopped any more pushing and prevented the complainant from throwing any punches if the appellant perceived that he was about to be punched by the complainant. It is clear that others directly nearby immediately after the punch was thrown intervened. The appellant could have stood his ground and called for assistance from his mates; there were two of his male friends nearby, one even taller and just as muscular as the appellant and a person who stood much, much taller than the complainant. The punch was thrown directly at the complainant's head, striking him over the left eye and cutting his eyebrow. Even if the appellant perceived that he was about to be punched by the complainant he could have pushed harder against the complainant, pushed him back into his group of friends and no doubt there would have been intervention by the friends of each party to stop any punch being thrown. In the circumstances the amount of self-defence exercised by the appellant was objectively excessive and therefore the provisions of s 418 of the Crimes Act 1900 have not been enlivened. The Crown has negatived self-defence. For those reasons the appeal against conviction must be dismissed.
The appellant is now 22. He is a man of prior good character. His personal circumstances are all favourable. He was clearly remorseful when interviewed by the police and he was in the position in which he found himself because of his intoxication. I have considered whether I should place the appellant not on a s 9 bond, as the learned magistrate did, but on a s 10 bond; that is, that I should set aside the conviction and release the appellant on condition that he enter into a bond to be of good behaviour for some period of time. However, recent legislation enacted by Parliament indicates a perception by the people of this State that too much violent conduct is caused by those affected by alcohol. Perhaps it would be fairer to say that it is the combination of testosterone and alcohol that causes violence in places such as hotels and nightclubs and the streets of the city and adjoining suburbs.
When I look at the statistics kept by the Judicial Commission for offences dealt with in the Local Court I find that there have been 1,654 cases under s 59(1) of the Crimes Act 1900. The median sentence is a s 9 bond with supervision. Only 10% of cases have been dealt with under s 10. The median bond with supervision is for a period of 18 months. Here, the magistrate ordered the appellant to enter into a bond to be of good behaviour for a period of nine months. In other words, the magistrate dealt with the offender leniently. When I go to statistics kept by the Judicial Commission for offences contrary to s 59(1) dealt with in this Court there are 290 cases, only five of which have been dealt with under s 10, 46% of all cases in this Court end up with a sentence of imprisonment. The median sentence is a sentence of imprisonment suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 together with supervision by Community Corrections.
Both public policy and statistics indicate that the sentence passed by the Local Court was not only proper but lenient. In the circumstances the appeal is dismissed.
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Decision last updated: 21 July 2015