Court of Appeal (WA)|2014-11-17|Before: Martin CJ

MAY -v- THOMAS [2014] WASCA 176 (17 November 2014)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MAY -v- THOMAS [2014] WASCA 176

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : MAY -v- THOMAS [No 2] [2012] WADC 96

Torts - Trespass to the person - Assault - Applicability of common law and Criminal Code (WA) defences

Torts - Trespass to the person - Assault - Selfdefence and defence of others - Necessity of findings as to nature of threat and response - Necessity of findings as to defender's state of mind

Appeal - Error of law - Deficiencies in reasons of trial judge - Failure to make findings of fact as to elements of defences

Appeal - General principles - Interference with judge's findings of fact - Whether finding reasonably open on evidence

Criminal Code (WA), s 1, s 222, s 244, s 248, s 250, s 254

Matter remitted for rehearing to District Court differently constituted

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Gibbs v Willis [2013] ACTSC 26

Hooper v The Queen [2003] WASCA 179

Leason v Attorney-General [2013] NZCA 509; [2014] 2 NZLR 224

May v Thomas [No 2] [2012] WADC 96

Meeks v Kirkham [2000] WASCA 94

Powell v The Queen (Unreported, WACCA, Library No 4004, 2 December 1980)

Quartermaine v The State of Western Australia [2008] WASCA 22

R v Dietz [2009] QCA 392

R v Green [2013] QCA 24

Watkins v Victoria [2010] VSCA 138

West Australian Newspapers Ltd v Bridge [1979] HCA 10; (1979) 141 CLR 535

Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645

1 The appellant, Mr Mark Christopher May, appeals from the decision of a judge of the District Court dismissing his claim for damages in respect of the personal injuries which he alleges he suffered as a consequence of being struck by the respondent, Mr Anthony Trevor Thomas, during the course of a party which took place on the evening of 2 March 2001. At trial Mr Thomas admitted that he struck Mr May, but denied that the blow was the cause of Mr May's injuries. Mr Thomas also asserted that he was acting in defence of either himself or another, or of the property to which Mr May was seeking entry. He relied upon a number of statutory defences provided by provisions of the Criminal Code (WA) then in force, together with defences at common law.

2 In order to resolve the issues raised at trial, it was necessary for the trial judge to make detailed findings with respect to the precise nature of the blow struck by Mr Thomas; the circumstances in which the blow was delivered, including the actions of Mr May in the seconds preceding delivery of the blow; the threat or threats which Mr Thomas actually apprehended at the time he delivered the blow; whether Mr Thomas believed that the blow which he struck was necessary to avert the threat or threats which he apprehended; and the reasonableness of Mr Thomas' beliefs. The reasons given by the trial judge do not enunciate the particular findings of fact which had to be made in order to resolve the issues at trial, or illustrate the process of reasoning which he adopted in order to arrive at his conclusion that Mr May's claim should be dismissed with sufficient particularity to enable appellate assessment of whether findings of fact made, or the reasoning process applied, were flawed by error. It follows that his decision must be set aside.

3 Given the very considerable period of time which has elapsed since the events giving rise to Mr May's claim, it would have been highly desirable if this court could have substituted its own findings of fact and reasoning for those recorded by the trial judge. However, the nature of the case, in particular the conflict between the testimony given by the witnesses to the critical events, precludes that course. Regrettably, a re-trial is the only course which is consistent with the provision of justice to both parties.

4 The factual context in which the altercation between Mr May and Mr Thomas took place was not contentious. On the evening of 2 March 2001 a party was held at the Mount Claremont home of Mr and Mrs Raymond Sadgrove, to celebrate the engagement of their daughter Rochelle to Mr Zeffron Reeves. Their house is at the rear of a duplex block configured in a manner often described as 'battle-axe'. The house was accessible from the road by means of a sealed driveway adjacent to the fence line. Although there was some security lighting in the vicinity of the driveway, it was not brightly lit on the evening in question. The driveway led to the carport from which a gate led to the rear patio and garden. Most of the party guests were in that area during the evening.

5 Ms Kate Chadbourne is an old school friend of Ms Rochelle Sadgrove. She was invited to the party. She brought with her Mr May, who was then her partner. Apparently he did not know any of the other guests at the party prior to the evening in question. Mr May is about 200 cm tall and at the time was well built - weighing over 100 kg. On their way to the party Mr May purchased a carton of beer. It is not clear on the evidence precisely how much of that beer Mr May drank over the course of the evening, but there is no doubt that it was a considerable amount. The evidence of Dr Mead was to the effect that a 'mildly conservative' estimate of Mr May's blood alcohol content at the time of the altercation, derived from blood samples taken after Mr May was admitted to hospital the following the day, would have been around 0.218 g per 100 mL.[1] There is no doubt that he was heavily intoxicated at the time he suffered his injuries.

6 Mr May behaved very poorly at the party. He was verbally abusive to Ms Chadbourne in front of other guests. He used crude language in a loud voice. He persistently abused Mr Sadgrove and a number of his friends. Eventually Mr Sadgrove asked him to leave. Mr Reeves noticed this, and escorted Mr May to the garden area at the front of the property. There were conflicting accounts as to the readiness with which Mr May agreed to leave, but at all events he left peacefully.

7 Mr May left the property and walked a short distance down the road to the car in which he had arrived. It seems that he expected to meet Ms Chadbourne by the car in order that she could drive him home. She was not at the car, and did not come out to meet him at the car. After a short while, Mr May decided to re-enter the property to find Ms Chadbourne. During this time, Mr Reeves had remained on the driveway at the front of the property.

8 At this time Mr Thomas was with other party guests in the garden at the rear of the Sadgrove's house. Mr Thomas is about 182 cm tall. He was an experienced rugby player and amateur boxer. Mr Thomas left the garden area through the gate into the carport and walked down the driveway in order to assist Mr Reeves. At some point there was an altercation involving Mr May and Mr Thomas on the driveway towards the front of the property. There were conflicting accounts given as to the presence and location of Mr Reeves at the time of the altercation. There were also conflicting accounts of the events which took place during the altercation. There was also conflicting evidence as to whether Ms Chadbourne was in a position to view the altercation. It will be necessary to review the evidence on these topics in detail in due course. At all events, Mr May fell to the ground.

9 Mr May was unconscious. Other guests at the party assisted to partly lift and partly drag him toward a car driven by Ms Chadbourne's father, who had arrived in the meantime in order to pick them up and take them home. During this process Mr May was dropped onto the ground. However, he was eventually placed in the car. Mr Chadbourne took him home, but due to the difficulty of moving such a large man, left him in the car overnight. It seemed to have been assumed by all that his lack of consciousness was due to his excessive alcohol consumption. However, during the following morning Mr May suffered a seizure and was taken to hospital.

10 As a result of medical attention provided at the hospital it was discovered that the back of Mr May's skull had been fractured and that he had suffered a serious brain injury. As a consequence of that injury Mr May has suffered a range of debilitating effects and is unable to work. The parties agree that the amount which would appropriately compensate Mr May for his injuries is $770,000.

11 In the statement of claim it is alleged that Mr Thomas assaulted Mr May by punching him in the corner of the mouth, causing him to fall backwards and to strike the back of his head on a concrete driveway.

12 In the defence it is asserted that Mr Sadgrove and Zeffron Reeves directed Mr May to leave the premises because he was extremely drunk and was acting in an aggressive and abusive manner towards guests at the engagement party. It is further asserted that he was induced to leave the premises by Rochelle Sadgrove, who falsely informed him that Ms Chadbourne was waiting outside for him. It is asserted that Mr May was escorted from the property by Ms Sadgrove and Mr Reeves.

13 It is further asserted in the defence that Mr May returned to the property walking onto the driveway screaming 'where the fuck is Kate', when he was again asked to leave the premises by Ms Sadgrove and Mr Reeves. The defence asserts that Mr May continued to scream and yell abuse, and refused to leave the premises, indicating an intention to return to the rear of the premises where the party was being held. It is asserted that Mr Reeves asked Ms Sadgrove to go back to the party to get help, which she did, asking Mr Thomas to assist Mr Reeves to remove Mr May from the premises.

14 In the defence it is asserted that Mr Thomas went to the driveway and heard Mr Reeves ask Mr May to leave, to which Mr May refused and screamed abuse at both Mr Reeves and Mr Thomas, and indicated an intention to return to the party. It is asserted that Mr Thomas then asked Mr May to leave, after which Mr May rushed towards both Mr Reeves and Mr Thomas with his arms raised and his fists clenched, indicating an intention to strike Mr Thomas and to return to the party at the rear of the premises.

15 In the defence it is asserted that Mr Thomas responded by raising his left arm for the purpose of fending off Mr May and by pushing Mr May in the chest using such force as was reasonable in all the circumstances. It is further asserted that Mr Thomas' actions in that regard, or in the alternative, if he did punch Mr May in the face, were done in defence of Mr Reeves, who he reasonably feared might be assaulted by Mr May, and to stop Mr May from returning to the part of the premises where the party was being held, and for the purpose of ejecting him from the premises.

16 In the defence it is further asserted that if Mr Thomas did either push or punch Mr May, neither caused Mr May's injuries which were the consequence of him losing his balance due to intoxication, or, in the alternative, as a result of him falling over, either once, or alternatively on two occasions upon which he had attempted to stand up after falling to the ground.

17 Prior to the commencement of the trial an outline of written submissions was filed and served on behalf of Mr Thomas. Those submissions amplified to some extent the facts alleged in the defence, and asserted that Mr Thomas formed the view that Mr May was about to hit either him or Mr Reeves when he raised his right arm to a position just above the horizontal and pushed Mr May away.

18 The outline of written submissions also addressed the legal issues which were said to arise in the case, and asserted that Mr Thomas was acting lawfully in self-defence, or in the defence of Mr Reeves, or in defending the premises against invasion by Mr May, or in evicting Mr May from the premises. In that context reference was made to s 5 of the Criminal Code Act 1913 (WA), and to ss 244, 248, 250 and 254 of the Criminal Code as they were at the time of the altercation. In the written submissions reliance is also placed upon the common law defences of self-defence or defence of another.

19 No objection was taken to this enunciation of the legal issues arising in the case, nor is it suggested that Mr Thomas abandoned any of the lines of defence identified in the written outline of opening submissions during the course of the trial.

The defences under the Criminal Code[2]

20 Section 5 of the Criminal Code Act 1913 (WA) provided as follows:

When, by the Code, any act is declared to be lawful, no action can be brought in respect thereof.

Except as aforesaid, the provisions of this Act shall not affect any right of action which any person would have had against another if this Act had not been passed; nor shall the omission from the Code of any penal provision in respect of any act or omission, which before the time of the coming into operation of the Code constituted an actionable wrong, affect any right of action in respect thereof.

21 It is well established that this section provides a defence against civil proceedings brought in respect of an act which is declared by the Criminal Code to be lawful.[3] It is also established that the section does not otherwise alter the common law, so that defences available at common law are unaffected.[4] To put it another way, if an act is declared lawful by a provision of the Criminal Code, the effect of s 5 of the Criminal Code Act is to provide a statutory defence in addition to any existing common law defences.

22 On behalf of Mr Thomas it was asserted that there were four sections of the Criminal Code which potentially had the effect of declaring his actions to be lawful. They were:

(1) It is lawful for a person ('the occupant') who is in peaceable possession of a dwelling to use any force or do anything else that the occupant believes, on reasonable grounds, to be necessary -

(a) to prevent a home invader from wrongfully entering the dwelling or an associated place;

(b) to cause a home invader who is wrongfully in the dwelling or on or in an associated place to leave the dwelling or place;

(c) to make effectual defence against violence used or threatened in relation to a person by a home invader who is -

(i) attempting to wrongfully enter the dwelling or an associated place; or

(ii) wrongfully in the dwelling or on or in an associated place;

(d) to prevent a home invader from committing, or make a home invader stop committing, an offence in the dwelling or on or in an associated place.

(2) A person is a 'home invader' for the purposes of subsection (1) if the occupant believes, on reasonable grounds, that the person -

(a) intends to commit an offence; or

(b) is committing or has committed an offence,

(3) The authorisation conferred by subsection (1)(a), (b) or (d) extends to a person assisting the occupant or acting by the occupant's authority.

(4) Section 250 applies to the authorisation conferred by subsection (1)(c).

(5) This section has effect even if the conduct it authorises would not otherwise be authorised under this Chapter.

(6) In this section -

(a) any place that is used exclusively in connection with, or for purposes ancillary to, the occupation of the dwelling; and

(b) if the dwelling is one of 2 or more dwellings in one building or group of buildings, a place that occupants of the dwellings use in common with one another;

'offence' means an offence in addition to any wrongful entry;

'place' means any land, building or structure, or a part of any land, building or structure.

When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.

In any case in which it is lawful for any person to use force of any degree for the purpose of defending himself against an assault, it is lawful for any other person acting in good faith in his aid to use a like degree of force for the purpose of defending such first-mentioned person.

Defence of property against trespassers: Removal of disorderly persons

(1) For the purposes of this section and section 255, the term 'place' means any land, building, structure, tent, or conveyance, or a part of any land, building, structure, tent, or conveyance.

(2) It is lawful for a person ('the occupant') who is in peaceable possession of any place, or who is entitled to the control or management of any place, to use such force as is reasonably necessary -

(a) to prevent a person from wrongfully entering the place;

(b) to remove a person who wrongfully remains on or in the place; or

(c) to remove a person behaving in a disorderly manner on or in the place;

provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm to the person.

(3) The authorisation conferred by subsection (2), as limited by the proviso to that subsection, extends to a person acting by the occupant's authority except that if that person's duties as an employee consist of or include any of the matters referred to in subsection (2)(a), (b) or (c) that person is not authorised to use force that is intended, or is likely, to cause bodily harm.

23 Other provisions of the Criminal Code which were relevant to the operation of those sections include s 222, which defined 'assault' as follows:

A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.

The term 'applies force' includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.

24 Further, at the relevant time, the expression 'grievous bodily harm' was defined in the Criminal Code to mean:

[A]ny bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health.[5]

Self-defence against unprovoked assault - s 248

25 In order to successful invoke the statutory defence provided by s 248 of the Criminal Code[6] it was necessary for Mr Thomas to establish that:[7]

(d) the force used by Mr Thomas was not intended, nor was it such as was likely, to cause death or grievous bodily harm or, if it was, the nature of Mr May's assault was such as to cause reasonable apprehension of death or grievous bodily harm, and Mr Thomas believed, on reasonable grounds, that he could not preserve himself from death or grievous bodily harm otherwise than by using the force which he used.

26 In order to invoke the defence provided by s 250 of the Criminal Code, on the basis that Mr Thomas's actions were justified in defence of Mr Reeves, it was necessary for Mr Thomas to establish that:

(c) the force used by Mr Thomas was reasonably necessary to make an effective defence against the assault upon Mr Reeves; and

(d) the force used by Mr Thomas was not intended nor was it such as was likely to cause death or grievous bodily harm, or if it was, the nature of Mr May's assault upon Mr Reeves was such as to cause reasonable apprehension of death or grievous bodily harm, and that Mr Thomas believed, on reasonable grounds, that he could not preserve Mr Reeves from death or grievous bodily harm otherwise than by using the force which he used.

27 The same basic structure applies to the statutory defence of self-defence, and the statutory defence of defence of another. In each case the first element of the defence requires that it be established that Mr May assaulted either Mr Thomas or Mr Reeves. The second element of the defence requires that it be established that the assault was not provoked. The third element requires it be established that the force used by Mr Thomas was reasonably necessary to make effective defence against the assault. That question is to be assessed objectively and is not concerned with the state of mind of Mr Thomas.[8]

28 The fourth element of each defence contains a number of sub-elements, and merits detailed analysis. The first sub-element is the proviso to the effect that the conduct is not lawful if it was intended, or such as was likely, to cause death or grievous bodily harm. The first aspect of that proviso of the defence is subjective, and requires a finding of fact as to the actual intention of Mr Thomas. The second aspect of that proviso of the defence requires an objective determination of the likely effect of the force which he used.[9]

29 In the circumstances of the present case, it could not be suggested that Mr Thomas intended to cause the death of Mr May, or that the force which he used was likely to have that consequence. Accordingly, that aspect of the proviso can be excluded from further consideration. However, Mr May asserted that Mr Thomas punched him in the head with force on a concrete driveway. Regrettably, serious and sometimes fatal injuries can be sustained when a single blow to the head is applied with force to a person standing on a hard surface. Convictions for unlawfully causing grievous bodily harm have been obtained in similar circumstances,[10] although much will depend upon the particular circumstances.[11] In the circumstances of this case there were live issues as to whether:

(a) Mr Thomas intended to cause Mr May bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health; or

(b) Mr Thomas used force of a kind likely to cause any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health.

30 If it was found that either Mr Thomas intended to cause grievous bodily harm to Mr May, or that he used force which was likely to have that effect, the statutory defences can nevertheless be invoked if Mr Thomas establishes a number of things.

31 First, it must be established that the nature of Mr May's assault upon Mr Thomas or Mr Reeves was such as to cause a reasonable apprehension of grievous bodily harm. That issue has to be assessed objectively by reference to the nature of the assault.

32 Second, it must be established that Mr Thomas believed that he could not preserve himself or Mr Reeves from grievous bodily harm otherwise than by using the force which he used. This issue is to be assessed subjectively - that is by reference to Mr Thomas' actual state of mind.

33 Third, it must be established that Mr Thomas had reasonable grounds for that belief. This issue is to be reached both subjectively, by reference to the circumstances as Mr Thomas believed them to be, and objectively by reference to the reasonableness of the belief in the circumstances that Mr Thomas believed to exist.

34 Analysed in this way, in the circumstances of this case, it can be seen that the issue which I described as the fourth element of the defences provided by s 248 and s 250 of the Criminal Code requires determination of the following specific issues:

(a) did Mr Thomas intend to cause grievous bodily harm to Mr May?, or

(b) was the force used by Mr Thomas likely to cause grievous bodily harm to Mr May?;

and if either of those questions is answered in the affirmative;

(c) was the nature of Mr May's assault upon Mr Thomas or Mr Reeves such as to cause a reasonable apprehension of grievous bodily harm?; and, if so

(d) did Mr Thomas believe that he could not preserve himself or Mr Reeves from grievous bodily harm other than by using the force which he used?; and, if so

(e) did Mr Thomas have reasonable grounds for that belief?

35 In order to invoke the defence provided by s 244 of the Criminal Code relating to a defence against home invasion, it was necessary for Mr Thomas to establish that:

(a) Mr Thomas was authorised by Mr or Mrs Sadgrove to prevent Mr May from re-entering their property;

(b) Mr Thomas believed that Mr May either had committed or was committing an offence, or intended to commit an offence, in addition to wrongful entry, on the property occupied by Mr and Mrs Sadgrove; and, if so

(d) Mr Thomas believed that the force which he used was necessary:

(i) to prevent Mr May from wrongfully entering Mr and Mrs Sadgrove's property; or

(ii) to cause Mr May, who was wrongfully on Mr and Mrs Sadgrove's property, to leave the property; or

(iii) to make effectual defence against violence used or threatened by Mr May who was attempting wrongfully to enter Mr and Mrs Sadgrove's property or was wrongfully on their property; or

(iv) to prevent Mr May from committing, or to make Mr May stop committing, an offence on Mr and Mrs Sadgrove's property; and, if so

(e) Mr Thomas had reasonable grounds for that belief.

Defence of property against trespassers: removal of disorderly persons - s 254

36 In order to successfully invoke the statutory defence provided by s 254 of the Criminal Code, it was necessary for Mr Thomas to establish that:

(a) he was authorised by Mr or Mrs Sadgrove to prevent Mr May from wrongfully entering their property;

(b) Mr Thomas used only such force as was reasonably necessary to prevent Mr May from wrongfully entering the property;

(d) the force used by Mr Thomas was not such as was likely to cause grievous bodily harm to Mr May.

37 Self-defence at common law was succinctly described by Wilson, Dawson & Toohey JJ:

[T]he law of self-defence requires no set words or formula. 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.[12]

38 The defence was explained in the civil context by the Court of Appeal of Victoria:

There are two elements to this test. In the context of a civil proceeding, the defendant must have believed at the time when he committed the relevant act that what he was doing was necessary; and that belief must have been based on reasonable grounds. The second element does not involve a test about what a hypothetical reasonable person might have believed in the circumstances, but rather whether the defendant had reasonable grounds for his belief, in the circumstances as he perceived them to be.

In determining whether the defendant believed that the force used was necessary, consideration should be given to the fact that a person who has reacted instantly to imminent danger cannot be expected to weigh precisely the exact measure of self defensive action which is required.[13]

39 So, in order to establish self-defence at common law, it was necessary for Mr Thomas to establish many of the elements which were relevant to the statutory defences upon which he relied. In the circumstances of this case, the defence would be successfully invoked if Mr Thomas establishes that:

(a) Mr Thomas believed that Mr May was about to assault him;

(b) Mr Thomas believed that the force which he used was necessary in order to defend himself from Mr May's attack; and

40 As with the statutory defence, the last element of the common law defence has components which are both subjective and objective. The element is subjective, in the sense that it turns upon the circumstances as Mr Thomas perceived them to be, and is objective in the sense that the grounds for belief must be reasonable.

41 The common law position with respect to defence of others is less clear. However, in R v Portelli[14] the Court of Appeal of Victoria held that despite a degree of uncertainty in the previous authorities, it should be concluded that the same principles should be applied to defence of another at common law as apply to self-defence. A similar approach has been taken in the Court of Appeal of New Zealand[15] and in the Supreme Court of the Australian Capital Territory.[16] I propose to take the same approach. It follows that in order to successfully invoke the common law defence of defending another, it is necessary for Mr Thomas to establish that:

(a) he believed that Mr May was about to assault Mr Reeves;

(b) he believed that the force which he used was necessary to defend Mr Reeves from Mr May's attack; and

42 It is clear from this analysis of the defences advanced by Mr Thomas that the case turns upon the findings of fact properly made with respect to the altercation between Mr May and Mr Thomas, including the events which took place immediately before that altercation, the altercation itself, Mr Thomas' state of mind at the time, and, because of the issue raised in relation to causation, the evidence relating to Mr May's departure from the scene. The evidence relating to the altercation came from five witnesses - Mr Thomas, Mr Reeves, Ms Sadgrove, Mr May and Ms Chadbourne. Because Mr Thomas admitted on the pleadings that he had assaulted Mr May, it was common ground that he bore the onus of proving the various defences which he had advanced, and for that reason, the evidence in support of his defences was led first.

43 In his evidence-in-chief, Mr Thomas stated that although he saw Mr May at the party, he did not speak to him prior to the altercation. According to Mr Thomas, he had three or four beers during the course of the evening and at around midnight was inside having a hot drink - either tea or coffee. He walked out to the patio at the rear of the house, where he saw a number of women consoling Ms Chadbourne. Ms Sadgrove appeared agitated and upset, and asked Mr Thomas if he would go to the front of the property and check on Mr Reeves as she was concerned for Mr Reeves' safety. At that time Mr Thomas did not know that Mr May was involved.

44 According to Mr Thomas, he walked through the gate and down the driveway where he saw two men. He saw Mr Reeves and a person who he learnt later was Mr May. He heard raised voices - 'there was argument occurring'.[17] The lighting was pretty poor.

45 According to Mr Thomas, he heard Mr Reeves say words to the effect of 'leave the property, walk away, you're not invited' to which Mr May responded 'tell Kate to get out here - get out here now, otherwise I'm going to fucking kill her'.[18]

46 Later in his evidence Mr Thomas paraphrased Mr May's words in slightly different terms:

Tell that bitch to come out here. Tell Kate to come out here. I'm going to fucking kill her if she doesn't come out. I'm coming in to get her.[19]

According to Mr Thomas, the words were spoken in a very aggressive and hostile manner, in a reasonably loud volume, just below shouting.

47 As Mr Thomas approached the two men, according to him Mr May turned to him and told him to 'fuck off', saying 'it's nothing to do with you, piss off'.[20] At another point in his evidence-in-chief Mr Thomas stated that Mr May told him to 'go back and get Kate'.[21]

48 When asked to describe his assessment of the situation at that stage, Mr Thomas replied:

Just that Mark May was very agitated, irate, angry, being very aggressive and - [I] was a bit concerned for Zeff's safety.[22]

49 According to Mr Thomas, he then said words to the effect of 'you've been asked to leave. Go away, get off the property, you're not welcome'.[23]

50 Mr Thomas did not notice Mr May to be affected by alcohol and had not seen how much he had had to drink during the evening - the only thing he noticed was that Mr May was 'so angry and aggressive'.[24]

51 According to Mr Thomas, Mr Zeffron Reeves was standing to his left. Then:

Mark May was still being verbally aggressive and telling us he was going to come into the property and get Kate. And then, all of a sudden, he's sort of raised his arms to clench fists and lunged towards us to push past - as if to push past us and - - -

What do you remember the last thing that was said before he did that?---'I'm going to the property. I'm going to get her. Get out of my way.'

'I'm going on the property. I'm going to'---'Get Kate.'

...

Did you know who he was referring to, at that stage?---Yes.

As best you knew, where was Kate, at that stage?---On the patio area with Rochelle and Jodie.[25]

52 According to Mr Thomas, Mr May then 'raised his arms and lunged towards us' with clenched fists, although not in a fighting stance. Mr May's hands were at shoulder or face height. He was about a metre or a metre and a half away from Mr Thomas.[26] According to Mr Thomas:

I believed he was coming towards - over to push us out of the way or hit us, either myself or Zeffron, and force his way back into the property.

So what did you do?---The instinctive reaction was to raise my right hand and fend him off as he was coming towards us.[27]

53 According to Mr Thomas, his hand was open and he pushed Mr May away, in the nature of a fend.[28] According to Mr Thomas, his hand made contact with Mr May's chest, with enough force to stop his momentum. He described it as the sort of manoeuvre one might use in rugby.

54 When asked whether he had formed any view as to whether he was more in jeopardy than Mr Reeves, Mr Thomas replied:

He tends to lunge more towards my - my side, as opposed to Zeffron. But it could have been either one of us he was going to hit, or - or attempted to break through.[29]

Mr Thomas denied that his hand was ever closed into a fist at any stage.[30] He denied that he punched Mr May with a clenched fist.

55 As far as Mr Thomas could recall, Ms Chadbourne was on the patio at the rear of the house when the altercation took place.[31]

56 According to Mr Thomas, his contact with Mr May stopped his momentum and he staggered backwards, falling onto his backside, into a seating position. Mr Thomas asserted that when Mr May attempted to stand up he fell backwards and rolled onto his back, on the driveway.[32] He could not recall whether he hit his head. However, he was staggering and trying to right himself, and this caused Mr Thomas to come to the conclusion that 'he was very intoxicated'.[33] Mr Thomas then returned to the party, leaving Mr Reeves and Mr May on the driveway. According to Mr Thomas, he saw Ms Chadbourne coming through the gate from the patio to the driveway as he walked back.[34] Mr Thomas left the party about an hour later.

57 During cross-examination Mr Thomas confirmed that when Mr May approached him with clenched fists his palms were facing towards Mr Thomas. He described Mr May's stance as threatening, and retracted his evidence-in-chief to the effect that he was not in a fighting stance, although he agreed that it was not a 'classical fighting stance'.[35]

58 During cross-examination Mr Thomas confirmed that as he approached Mr Reeves, he and Mr May were exchanging words. Mr Reeves was asking Mr May to leave, and Mr May was adamant that he wanted to re-enter the property to find Ms Chadbourne. Mr Thomas repeatedly denied stepping towards Mr May, and reiterated that Mr May was about one and a half metres from him at the time of the altercation.[36] He stated that he believed that he was in imminent danger of being hit by Mr May.[37] He maintained the position that he fended Mr May off, which halted his momentum and caused him to stagger back a few paces, falling onto his bottom. After that Mr May tried to get up but fell down again.

59 During cross-examination it was put to Mr Thomas that he thought Mr Reeves was in imminent danger and that Mr May was trying to get back into the property. He agreed with both propositions.

60 During cross-examination a video recorded interview of Mr Thomas by police was put to him. The interview took place on 28 March 2001, a little over three weeks after the incident. During that interview he told police that when he was in the backyard at the party Ms Sadgrove had asked him to go to the front of the house because 'Zeff needs a bit of a hand, there's a bit of a problem out there'.

61 Mr Thomas told police that he left the backyard through a gate to the carport and walked down the driveway where he saw Mr May and Mr Reeves. He could see that Mr May was trying to get past Mr Reeves and get into the house. He said he could hear shouting and abuse, and that he heard Mr May shout, about his girlfriend Kate:

If she doesn't come out now she'll get what she fucking deserves. And she'll get what she got last time.

You've been asked to leave. Please leave. Kate will be out soon.

62 Mr Thomas told police that he joined Mr Reeves and asked Mr May to leave and to calm it down and 'just behave yourself'. He told police that he offered to call a cab for Mr May.

All of a sudden he just sort of - Zeff and myself were just sort of talking - and he's just come towards us both - his arms in the air like he was just sort of rushing, trying to make a rush to get past us or through us, I don't know.

And that was it. I just saw him coming, stuck a hand up ... [Mr Thomas then showed his right arm raised with his palm open at shoulder height] ... and he's run into it. Sort of to push him away. Just like that.

Next thing I know he stumbled back and had fallen on his arse, and that was it.

64 At another point during the interview, Mr Thomas told police:

He went to make a rush. I think he went to make a rush to get past us. So his arms were flailing. He had arms raised in the air, he was still shouting and screaming ... the reaction was to fend him off and push him away.

65 Mr Thomas denied to police that he had punched Mr May, and asserted that any contact was with an open palm to Mr May's chest or higher - perhaps to his throat or face.

66 Later in the interview when police asked Mr Thomas what he thought was going to happen he said:

I don't know. I didn't even think, it was a natural instinct; a reflex instinct just to stick your arm up to push him away. I don't know if he was coming at us throwing punches, his arms were in the air. He was shouting and - more of he was just trying to get past us, I dunno I couldn't tell you, it was just a reflex action of just sticking your arm up and pushing him away.

67 Later he told police 'it just seemed like all of a sudden he was there in your face and I was trying to keep him away'.

68 Mr Thomas told police that he had taken a six pack of beers with him to the party and he had drunk them by the time of the altercation.

69 Later again in the interview when police asked Mr Thomas why he put his arm up, he replied:

Self-defence, basically. To keep him away. I didn't - well I just thought maybe he might have thrown a punch at me. I just didn't want to ... I wanted to keep him at arms-length.

70 Mr Thomas showed police how Mr May had raised his arms, depicting open hands at about face height, facing inwards, although he briefly clenched one fist when depicting Mr May's stance. He told police that Mr May was angry and aggressive. He told police that Mr May was threatening Ms Chadbourne and Mr Reeves.

71 Towards the conclusion of the interview, Mr Thomas reiterated that he did not punch Mr May and explained his physical contact 'because he was coming towards me, and I - towards myself and Zeff - it was self-defence ... my reaction was just to fend him off and keep him away from us'.

72 Mr Thomas was cross-examined in relation to some inconsistencies between the evidence he had given and the statements he made to police. He accepted that there were some inconsistencies, but generally maintained the position which he had taken during his evidence-in-chief.

73 During his evidence-in-chief Mr Reeves stated that late in the evening he was advised that Mr Sadgrove wished one of the guests to leave because of his obnoxious behaviour. He went to an area where Mr Sadgrove was sitting. Mr Sadgrove asked him to ask Mr May to leave and he did so. Mr May initially refused, but after Ms Sadgrove intervened he got up and walked out through the side gate to the driveway. Mr Reeves and Ms Sadgrove followed him down the driveway. Mr May was asking after Ms Chadbourne and wanted her to leave with him. Mr Reeves believed that she was inside the house.

74 Mr Reeves followed Mr May down the driveway and saw him leave the property and move on to the street. However, Mr May returned. Although initially Mr Reeves stated that he thought Ms Sadgrove had left by this time, later he stated that she was with him when Mr May returned. Mr Reeves formed the opinion that Mr May was likely to try and get back into the party so he asked Ms Sadgrove to go and get help. Mr May was 'still screaming out for Kate'.[38] Mr Reeves was starting to worry 'about potentially getting hit ... or in a physical altercation'.[39]

75 After Ms Sadgrove left, Mr Reeves was alone with Mr May. Mr Reeves probably swore at Mr May or told him to 'fuck off'. Mr May was aggressive and seemed 'hell bent on - on just getting back in to get Kate, or whatever was going through his mind at the time. I don't know'.[40] They probably made physical contact and then Mr Thomas joined them. They both talked to Mr May trying to get him to leave.

76 According to Mr Reeves, Mr Thomas was on his left hand side. Mr May kept advancing and raised a fist towards both of them - a right fist - and 'just sort of lurched forward to throw a punch'.[41] Mr Reeves was getting ready to defend. He and Mr Thomas were so close as to be touching shoulders and Mr May came at both of them.[42] There was contact between Mr May and Mr Thomas which looked to Mr Reeves like pushing into each other, after which Mr May fell down onto his backside. Mr Reeves thought that Mr Thomas had put his hands up to stop Mr May from coming at him - 'to push him away sort of thing'.

77 It seems from the transcript that Mr Reeves simulated the stance adopted by Mr Thomas, which involved holding two hands out in front, without a clenched fist. When it was put to Mr Reeves that Mr Thomas punched Mr May, he replied that if it happened he did not see it, and he was standing right next to Mr Thomas. He denied that it had occurred.

78 Mr Reeves could recall hearing Mr May's head hitting the ground but could not recall whether that was from the fall when Mr May made contact with Mr Thomas, or when he subsequently fell after trying to get to his feet. Mr Reeves could remember him hitting his head on the driveway after rocking on his haunches.[43] By this stage Mr Thomas had left and returned to the party. According to Mr Reeves, the only people present at the time of the altercation were Mr May, Mr Thomas and himself - neither Ms Sadgrove nor Ms Chadbourne were present, nor within viewing distance. However, Ms Chadbourne came to the front of the property some minutes later, with Rochelle Sadgrove and another.

79 About an hour or so later Ms Chadbourne's father arrived with a car to take Mr May and Ms Chadbourne home. A group of people tried to lift Mr May to the car. According to Mr Reeves, during that process he was dropped.

80 During cross-examination Mr Reeves confirmed that Mr May rushed towards him with his right fist clenched, his arm elevated and appeared to be shaping to throw a punch.[44] However, he did not see Mr May throw a punch.[45]

81 During cross-examination Mr Reeves accepted that Mr May may have fallen backwards flat on his back after making contact with Mr Thomas, and that he may have hit his head on that occasion. Then Mr Thomas left and Ms Chadbourne and others arrived.

82 Mr Reeves did not get the impression that Mr May was trying to do anything other than get Ms Chadbourne.[46]

83 Mr Reeves was definite that Mr Thomas had placed both hands in front of himself in order to stop Mr May coming towards him.[47]

84 Mr Reeves assisted to get Mr May into Mr Chadbourne's car and was confident that he did not hit his head in the course of that process.[48]

85 Ms Sadgrove heard her father ask Mr May to leave. She and Mr Reeves also asked him to leave. He did not really resist. She did not know where Ms Chadbourne was at this stage - she assumed that she was still inside. She and Mr Reeves then walked Mr May off the property. As they were walking out Mr May asked where Ms Chadbourne was. Ms Sadgrove told him that she had already left.

86 She and Mr Reeves saw Mr May walk down the street and Ms Sadgrove walked back up the driveway in order to return to the party. However, she heard Mr May calling out for Ms Chadbourne, and turned to see that he had returned. Mr Reeves asked her to go and get help. She returned to the party and saw Mr Thomas walking past her down the driveway. She saw Ms Chadbourne on the patio. She could hear Mr May screaming for Ms Chadbourne. She held on to Ms Chadbourne because she did not want her to leave - she wanted her to stay the night.

87 A little later Ms Sadgrove went through the gate and down the driveway. Ms Chadbourne was behind her. She saw Mr May on the ground and there were two people next to him - Mr Thomas and Mr Reeves. She did not see what had preceded. Ms Sadgrove was emphatic that Ms Chadbourne had not left the party area and gone to the driveway before her.[50]

88 During cross-examination Ms Sadgrove confirmed what was implicit in her evidence-in-chief, to the effect that she did not ask Mr Thomas to go and assist Mr Reeves, because he was already on the way.[51] During cross-examination she reiterated, emphatically, that Ms Chadbourne was not in a position to see what happened because she was at the party at the rear of the house when the altercation occurred.[52]

89 Mr May recalled Mr Sadgrove asking him to leave the party. He walked down the driveway and waited by the car thinking that Ms Chadbourne was going to come out. She did not come so he walked back up the driveway to get the keys. According to him, he walked all the way up the driveway to the carport and asked someone on the other side of the gate if they could go and get Kate. He waited just the other side of the carport. According to Mr May he was standing on the grass near the carport when he saw Kate and some other girls. The next thing he can recall is being hit by somebody. It was a strong blow to his chin, powerful enough to knock him out.[53] He has a scar on his chin from the blow.

90 Mr May is 6 foot 5 inches in height and weighed 105 kg at the time.

91 During cross-examination Mr May conceded that for months after the incident he remembered nothing of it. However, he asserted that he had recently gained a recollection of the events. He denied that he was aggressive or belligerent that evening.

92 Ms Chadbourne recalls that Mr May was asked to leave the party, and that he left. She then learnt, somehow, that he wanted to see her out the front of the house. According to her, she went out through the gate and down the driveway. She saw Mr May standing on the driveway. According to Ms Chadbourne, someone walked past her and went up to Mr May and punched him, and then Mr May fell backwards and hit his head. The punch was a punch with the fist to Mr May's face. Ms Chadbourne believed that the person who delivered the punch was Mr Thomas. Ms Chadbourne stated she was only a few metres away when the punch was thrown. Mr May fell backwards and hit his head on the concrete, and then turned a little to his side.

93 During cross-examination Ms Chadbourne admitted that she had told police that Mr May left in the company of Ms Sadgrove. She maintained her evidence to the effect that a person walked past her as she was walking towards Mr May and punched him. She did not recall seeing Mr May in a verbal confrontation with others.

94 Ms Chadbourne was also involved in the steps that were taken to put Mr May into her father's car. She recalled that the people who were carrying Mr May staggered and Mr May fell back on to the ground during that process. She accepted that she told police that Mr May hit his head on the cement driveway when he was dropped. However, during cross-examination she asserted that his whole body was not off the ground, and that it was more like he was being dragged. She could not remember whether he was being held face down or face up.[54]

95 The reasons of the trial judge commence with a summary of the substantive issues in the case, and references to s 5 of the Criminal Code Act and s 248, s 250 and s 254 of the Criminal Code. He then referred to the difficulty of factual assessment caused by the significant delay since the events in question, the consumption of alcohol by many of the witnesses on the night in question, and the inherent difficulty of factual determination in assault cases.[55]

96 The trial judge then referred to the facts established by the non-contentious evidence, in similar terms to those which I have set out above.

97 The trial judge then addressed the evidence given by the four witnesses to the critical events around the time of the altercation, namely Mr May, Mr Thomas, Mr Reeves and Ms Chadbourne.

98 The trial judge expressed concern with respect to Mr May's reliability as a witness, having regard to the extent of his intoxication on the night in question and the brain injury which he sustained, and the probability that he had absorbed the version of events related to him by Ms Chadbourne. He concluded that 'Mr May is not a witness whose evidence can be given much weight'.

99 The trial judge then referred to aspects of the evidence given by Mr Thomas. He expressed surprise at Mr Thomas' evidence to the effect that he could not recall whether Mr May had hit his head, given that a number of other witnesses said that they heard Mr May's head hit the ground, with the result that an ambulance was called.

100 The trial judge also noted differences between the evidence given by Mr Thomas and the statements he made to police 25 days after the incident. He then observed:

It is very difficult to reconcile Mr Thomas' description of what he did to Mr May, and what the result of it was, with the very significant injury suffered by Mr May.[56]

101 The trial judge also observed that it was difficult to follow Mr Thomas' evidence to the effect that he turned around and left the area and went back inside the house as soon as he pushed Mr May 'if Mr Thomas' version of merely pushing Mr May is accepted'. I digress to observe that the process of reasoning underpinning that observation is not self-evident, but I assume that the trial judge meant that it is unlikely that Mr Thomas would have returned to the house unless and until Mr May's attempts to re-enter the premises had been completely rebuffed, which was inconsistent with the evidence of a mere push.

102 The trial judge then referred to lines of cross-examination based on the different stances which Mr Thomas was said to have adopted in relation to the litigation over the years and declined to review in any detail the substance of those assertions because by at least the time of his interview with police, Mr Thomas made reference to acting in self-defence.[57]

MAY -v- THOMAS [2014] WASCA 176 (19 September 2014)

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Judgment (357 paragraphs)

MAY -v- THOMAS [2014] WASCA 176 (17 November 2014)

Legislation Cited (2)

Cases Cited (6)