Ja v Goldsmith [2004] ACTSC 79

3. As the learned Magistrate observed, it is difficult to know precisely what then occurred. Most, if not all, of the witnesses had been affected to some degree by the consumption of alcohol and their recollections differed in significant respects. It is clear that the appellant asked various members of the group whether they were Ford or Holden supporters and that he shook hands with those who identified themselves as Holden supporters but behaved like "a bit of a smart arse", as he evocatively explained, towards the Ford supporters. This behaviour apparently irritated the complainant who pushed the appellant and said "Shut up, unless you want a head butt". At this point another member of the group, Mr Jason Trinder, proceeded to tackle both the appellant and his friend Mr Bogdani. The appellant was knocked to the ground. In evidence, Mr Trinder claimed that he had thought the complainant was being attacked. There was conflicting evidence as to what followed. Some witnesses asserted that when the initial scuffle was broken up Mr Trinder apologised and/or that he and the appellant shook hands but others apparently did not recall any such occurrence. Having reviewed the evidence, his Worship found that the altercation was broken up and that it was acknowledged that a mistake had been made.

4. The appellant then moved some 10-15 metres along Northbourne Avenue, picked up a bottle and smashed it on the kerb of the road. He said in evidence that he had believed that some or all of the members of the complainant's group were "after" [him] and that he had intended to scare them with the broken bottle. However, in cross-examination he conceded that until he turned and began to advance towards the group, neither the complainant nor any of his companions had sought to chase him and that he was unable to recall hearing any sounds of pursuit. When he did begin to move back towards them, the complainant and Mr Trinder ran towards him. Mr Trinder admitted that he kicked him in the chest and then attempted to kick him again. The complainant gave evidence that he had felt threatened by the approach of the appellant with the bottle and had been trying to "talk him out of it". Indeed, he still thought he might have been able to do so when "Out of nowhere" Mr Trinder lunged at him with a kick. The kick threw the appellant off balance. The complainant explained:

And as he was off balance I've lunged at him, to try and restrain him. And as I've gone and grabbed him his arms come around and just glanced my neck.

5. A further scuffle then ensued during which the complainant held the appellant's arm, Mr Trinder then punched him and a third man joined the fray in an attempt to help subdue him.

6. It was not until later that the complainant realised that a glancing blow to his neck had, in fact, inflicted a cut which completely severed the external jugular vein.

7. The charge of intentionally inflicting grievous bodily harm was based upon the contention that the "glancing blow" described by the complainant had been deliberately struck with the intention of causing, if not the precise injury suffered, at least a wound sufficiently serious to fall within the description "grievous bodily harm".

8. During the proceedings before the Magistrate, the competing submissions of counsel were apparently directed substantially to the question of self-defence, the relevance of self-induced intoxication and the issue as to whether the injury which the complainant sustained should be found to have constituted "grievous bodily harm" when it apparently had neither endangered his life nor caused any significant long term damage.

9. In addressing the issue of intent, his Worship observed that, in most cases where an aggressor uses a weapon to wound a victim and grievous bodily harm is sustained as a consequence, it is not difficult to infer that the aggressor intended to inflict such harm. In the present case, however, counsel for the appellant had submitted that the specific intent could not be inferred from the evidence "due to the level of the young person's intoxication". His Worship took that point into account but found:

I am nevertheless satisfied by the evidence that the young person was aware that he was holding a broken bottle when he swung the blow which struck the complainant and caused the significant injury to the complainant. That blow was struck almost at the outset of the altercation and shortly after the young person had broken the bottle and advanced upon the complainant, making a threat to injure him. I am satisfied that the young person, as such, intended to cause serious harm to the complainant, and as such I find the principal offence proved.

10. Having regard to the manner in which the matter proceeded and was apparently argued, it is understandable that this issue may have been addressed in that manner. His Worship does not seem to have had the benefit of any submissions concerning the possibility that, even if not acting in self-defence, this intoxicated young man may have reacted to the substantially unprovoked attack on him by the complainant and Mr Trinder by brandishing the broken bottle as a stupid act of bravado, intended to frighten rather than to injure, and that the injury in fact inflicted may have been an unintended consequence of the struggle that followed. Yet the proposition that he had been intending to frighten people in the group was expressly put to him by the Crown prosecutor in cross-examination:

Okay. The whole idea of getting the bottle was to look as threatening as possible, wasn't it? - Yes, you could say that.

To threaten this group, wasn't it? - Yes, to - to scare them off.

You wanted them, as you said, you wanted them to piss off? - Yes, that's right.

. . . The idea to pick up the bottle was to scare them, wasn't it? . . . Yes, that's right.

. . . You're trying to scare this group of people away? - M'mm.

Is it more likely that you're trying to look as threatening as possible? - You could - yes, you could say that.

11. In his evidence in chief he said "I expected to scare them off, just not that they'd run towards me sort of thing. So I didn't - I didn't know what to expect or what to think". In answer to a further question he said ". . . I thought that - it hadn't - hadn't gone to plan, really. I expected to scare them off".

12. He was then asked did he think at that stage that he could do anything else and answered "No, not really. It all happened so quick".

The whole reason, the main reason why you smash a bottle is to use it?

It was to scare them off is why I did it.

Well, if they called your bluff? Yes.

What did you think was going to happen? I thought that would be the end of it. They would go, and then that's it.

Well, you were threatening them? Yes

You're telling them to piss off? Yes

What did you think was going to happen if they didn't piss off? I didn't expect them to. I didn't - I didn't look at that side of it.

You didn't turn your mind to that? No

At all? No

14. Whilst one would obviously be entitled to approach this account with a certain degree of scepticism, it must be remembered that the Crown bears the onus of proving beyond reasonable doubt that the accused actually intended to cause grievous bodily harm. In the absence of admissions that he had the requisite intent, the Crown could seek to discharge this burden of proof only by reliance upon circumstantial evidence. That, in turn, required the Crown to establish not only that such an intent could be rationally inferred from the evidence but that it was the only rational inference that could be drawn, or to put the test another way, that the evidence excluded any reasonable hypothesis that the appellant may have acted without such intent.

15. Whilst s 31 of the Criminal Code 2002 (ACT) (the "Criminal Code") provides that evidence of self-induced intoxication cannot be considered in deciding whether a fault element of "basic intent" exists, this provision does not apply to an allegation of a specific intent such as an intent to cause grievous bodily harm. Hence, the appellant's state of intoxication had to be taken into account.

16. It is clear from the complainant's evidence that whilst the appellant had been walking towards him with the broken bottle he did not make any attempt to strike anyone with it prior to the violent contact that occurred when the complainant and Mr Trinder ran at him. There was no apparent reason to doubt the complainant's evidence that Mr Trinder's kick threw the appellant off balance and that as he was off balance the complainant also lunged at him to try to restrain him. It was at this point that "his arm's come around and just glanced [the complainant's] neck". The decisive question is whether the evidence was sufficient to establish that this movement was carried out with the intention of causing grievous bodily harm to the complainant or whether it may have been an involuntary, accidental or reflex motion by a young man knocked off balance by a violent kick in the chest and then seized by a second man. Having considered all of the evidence, including that relating to the appellant's state of intoxication, I have concluded that the prosecution case did not exclude the hypothesis that the appellant may have moved his arm as he did without actually intending to stab the complainant in the neck with the bottle and, accordingly, it is my opinion that the requisite intention was not proven beyond reasonable doubt.

17. It has long been accepted that guilty verdicts should be set aside if found on appeal to have been unsafe or unsatisfactory. In M v R [1994] HCA 63; (1994) 126 ALR 325 at 329 Mason CJ, Deane, Dawson and Toohey JJ said that:

In most cases a doubt experienced by an appellant court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted, or otherwise lacks probative force in such a way as to leave the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.

18. A similar approach must be taken in relation to appeals from decisions of magistrates or from judges who have presided over trials by judge alone. In Brayshaw v Liosatos [2001] ACTSC 2 (19 January 2001) Higgins J (as he then was) said at [127]:

When the appeal is by way of rehearing, not only will the appeal court be obliged to intervene if the primary decision appears tainted by error of fact or law, but also when, having allowed for any advantage the Magistrate had seeing and hearing the witnesses and giving due respect to his or her conclusions and reasons, the appeal court is of the view that the decision arrived at is wrong.

19. I am, of course, acutely conscious of the strong warnings that have been given by the High Court of Australia concerning the need for appellate courts to respect the findings of trial judges and magistrates concerning the credibility of witnesses: see, for example, Uranerz (Australia) Pty Ltd v Hale (1980) 30 ALR 193 at 199; and Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. However, the conclusion that I have reached is not dependent upon any view that the Magistrate erred in assessing the demeanour of any of the witnesses or even that such an assessment provided too fragile a base for the relevant findings of fact. Section 214(2) of the Magistrates Court Act 1930 (ACT) provides that in an appeal of this nature, the Supreme Court must have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact. In the present case, having given full weight to his Worship's findings and the advantages he undoubtedly enjoyed in hearing the evidence, I have concluded that there is a real doubt as to the appellant's intent which was, of course, one of the essential elements of the charge.

20. Counsel for both parties agreed that in the event that I came to that conclusion I should proceed to determine whether, having regard to the Magistrate's findings as to the credibility of the relevant witnesses, I was satisfied beyond reasonable doubt that the appellant had committed any of the offences that were the subject of alternative charges before the Magistrate.

21. The first alternative charge of intentionally wounding the complainant contrary to s 21 of the Crimes Act 1900 (ACT) (the "Crimes Act") should, in my opinion, be dismissed for the same reasons. The evidence did not, in my opinion, establish that the appellant had acted with the requisite intent.

22. However, quite different considerations arise in relation to the charge of assault occasioning actual bodily harm (s 24 Crimes Act). In my opinion, there can be no doubt that the appellant committed an assault by smashing the bottle, holding it out in front of him and commencing to advance upon the complainant and other members of the group. Only two further questions need to be considered: first, whether the actual bodily harm that was undoubtedly suffered by the complainant was occasioned by the assault and, second, whether the appellant was acting in self-defence.

23. The first of these issues may be dealt with shortly. It was unnecessary for the prosecution to prove that the appellant intended to cause the actual bodily harm that resulted. Hence, it has been held that a person may be convicted if the person assaulted jumps out of a window and is injured. See R v Beech (1912) 7 Cr App R 197; R v Curley (1909) 2 Cr App R 109. In the present case the appellant conceded that the complainant and Mr Trinder only began to run towards him after he began advancing upon them brandishing the broken bottle and it seems clear that they were attempting to disarm him. A person who menaces others with a weapon cannot escape criminal liability for his or her conduct merely by asserting that he had not expected the intended victims of his assault to put up a struggle. In my opinion, when, as in this case, a victim is injured whilst attempting to disarm such a person his or her injuries have been occasioned by the assault.

24. Section 42 of the Criminal Code did not apply to the present case and any question of self-defence fell to be determined by reference to the common law. As the High Court of Australia explained in Zecevic v Director of Public Prosecutions (VIC) [1987] HCA 26; (1987) 162 CLR 645 the relevant principle is that, once an issue as to self-defence is raised, the Crown bears the burden of proving beyond reasonable doubt either that the accused did not believe that it was necessary to do what he or she did in self-defence or that there were no reasonable grounds for that belief.

25. It may be noted that s 33(1) of the Criminal Code provides that, if any part of a defence is based on actual knowledge or belief, evidence of intoxication may be considered in deciding whether the knowledge or belief exists. On the other hand, s 33(3) provides that if any part of a defence is based on reasonable belief, then in deciding whether the reasonable belief existed, regard must be had to the standard of the reasonable person who was not intoxicated. However, whilst frequently referred to as a defence, the ultimate onus of proof rests on the Crown and once the evidence discloses the possibility that the relevant act was done in self-defence the issue must be considered even if not raised by the accused: Zecevic v Director of Public Prosecutions (VIC) at 657.

26. Hence, in considering the first of these issues, it is clearly necessary to take into account both the intoxicated state of the appellant and the fact that he had just been assaulted by two adult men who were part of a large group.

27. Nonetheless, he had moved 10-15 metres away from them before stopping to pick up the bottle and had not been pursued. Furthermore, he did not attempt to back away from the group whilst brandishing the broken bottle or even merely stand his ground, but actively advanced upon them. In these circumstances I am satisfied beyond reasonable doubt that he did not genuinely believe that it was necessary for him to act as he did in his own self-defence. Furthermore, even if I had entertained any doubt on this issue it would have had no impact upon the end result because, in my opinion, there were no reasonable grounds for that belief. Whilst regard must be had to the standard of the reasonable person who is not intoxicated, I accept that it is necessary to assess the situation then confronting the appellant as it may have seemed through the eyes of a 16 year old boy who had been assaulted and threatened only moments before and who may have been frightened and uncertain how to react. Nonetheless, I am satisfied beyond reasonable doubt that a reasonable person of that age and in that situation would not have formed a belief that it was reasonably necessary in his own self-defence to smash a bottle and advance upon the complainant and his companions.

28. Accordingly, whilst his conviction for an offence of intentionally committing grievous bodily harm must be quashed he will be convicted of the alternative charge of assault occasioning actual bodily harm.

29. This conclusion makes it unnecessary to consider the further alternative charge of common assault.

30. Sadly, this case offers yet another example of the speed with which a silly argument can erupt into violence when alcohol has dulled the common sense and restraint of the protagonists and fuelled their aggression. The complainant, Mr Trinder and the appellant all behaved violently on the night in question. The complainant was largely responsible for precipitating the whole incident by pushing the appellant and threatening to head butt him. He claimed not to have intended to carry out that threat but, even if this was true, his behaviour was clearly intimidatory and unwarranted. Mr Trinder's conduct in tackling both the appellant and his friend Mr Bogdani seems to have involved a purely gratuitous act of violence. His claim, that he thought the appellant must have been attacking the complainant because he had been pushed by him, was too silly to have been taken seriously. In any event, there was no conceivable justification for his conduct in knocking over Mr Bogdani who had apparently offended him only by being present. His later intervention in kicking the appellant when the complainant was attempting to reason with him was intemperate and unnecessary. Both were apparently guilty of assault and, whilst it may be understandable that the complainant escaped prosecution given the potential gravity of his injury, it is difficult to understand why Mr Trinder was not charged with one or more counts of assault. Nevertheless, the reprehensible behaviour of the complainant and Mr Trinder does not excuse the conduct of the appellant whose actions could so easily have caused real tragedy.

31. I will hear counsel as to the appropriate sentence that should be imposed for the offence I have found proven and as to the costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Solicitor for the respondent: ACT Director of Public Prosecutions