A. It was before, it was in self-defence, what I stated earlier, but now I've come to review the information on that CCTV and I accept that I made some errors in judgment, and that's why I'm here to try to press, to get my old employment, job back.
55 In my view, having viewed the CCTV footage as to what occurred in the foyer area of the Wellington Hotel on 15 April 2006, initially between he and Mr Amatto, Mr Flanagan was clearly the aggressor.
56 The CCTV footage of that altercation shows that, at the relevant time, Mr Flanagan and Ms Humphries entered the foyer area from the left of the screen, exiting what I understand is the gaming room. At about the same time, Mr Amatto entered the foyer from the bar which is on the right of the screen. Mr Amatto is shown clearly carrying two cans in his right hand. As they approach each other, Mr Flanagan pushed into Mr Amatto with his left shoulder and arm, causing Mr Amatto to be pushed backwards. Mr Flanagan then turned and faced Mr Amatto.
57 Mr Flanagan then raised his left arm, grabbed and then pushed Mr Amatto somewhat violently by his (Mr Amatto's) t-shirt. He then pulled Mr Amatto towards him then pushed him away and continued to do so with increasing force. At this point, Ms Humphries is almost totally obscured from view by the two men.
58 At some point shortly thereafter, Ms Humphries attempted to place herself between Mr Flanagan and Mr Amatto but she was swept aside by Mr Flanagan's pushing and pulling of Mr Amatto by his t-shirt. At that point, Ms Humphries turned away and walked out of the foyer, presumably to get the help that later appears.
59 With just the two protagonists in the foyer area, Mr Flanagan then pushed and shoved Mr Amatto with enough force to move both men from the middle of the foyer to the door leading to the gaming room where Mr Amatto was shoved against the wooden door frame and pinned to it by Mr Flanagan. Mr Amatto still had two cans in his right hand and his left arm was still by his side. Shortly after, Mr Amatto pushed forward from the door frame and pushed Mr Flanagan forward with his left hand towards the centre of the foyer and broke Mr Flanagan's hold. He was still holding two cans in his right hand. Mr Amatto has his back to the screen and almost totally obscures Mr Flanagan but both of Mr Flanagan's hands are raised towards Mr Amatto.
60 Shortly thereafter, Ms Humphries emerged from the door to the bar and walked to the two men. She appears to talk to Mr Flanagan, tapping him on the back, attempting to restrain him by holding his arm. Mr Amatto grabbed Mr Flanagan by the t-shirt with his left hand. At this point, Ms Humphries and an unidentified woman attempted to intervene, both verbally and physically, between the two men. Also at this point, Mr Humphries, Ms Humphries' father, entered the foyer from the bar. What followed then is a continuing melee involving Mr Flanagan, Mr Amatto, Mr Humphries and ultimately Mr Wade Hynch who intervened on behalf of Mr Amatto. During that melee, Mr Flanagan can be observed punching Mr Wade Hynch.
61 Putting aside for the moment the precise circumstances that follow once other people become involved, there is no dispute the CCTV footage clearly discloses Mr Flanagan making the first physically aggressive move towards Mr Amatto. Further, it is abundantly clear Mr Amatto was holding two cans in his right hand. It was some time before Mr Amatto raised his left hand, not in any way to punch Mr Flanagan but seemingly in an attempt to push him away when he was pinned against the door area leading to the gaming area.
62 Given Mr Flanagan's actions, the question arises as to whether what occurred between Mr Flanagan and Mr Amatto in the gaming room amounts to extenuating circumstances such as to mitigate Mr Flanagan's overall culpability for the subsequent assaults, placing them, as was submitted, at the lower range of seriousness for those types of offences.
63 Notwithstanding the somewhat double edged position Mr Flanagan adopted in his evidence before me, that is, on one hand Mr Amatto was the aggressor but on the other hand he accepted the Magistrate's findings as to his culpability, it is difficult, in the first instance, to see how, in light of the evidence, Mr Flanagan could maintain a position of self defence. In other words, in his confrontation with Mr Amatto in the foyer area, nothing in the CCTV footage discloses Mr Amatto exhibited any action that suggested he was intending to be physically violent towards Mr Flanagan. In his right hand there were two cans of drink and at no time did his left hand do anything other than remain largely by his side until such time as he used it to try and push Mr Flanagan away.
64 Mr Flanagan asserted, because of what had been said between them in the gaming room, he believed Mr Amatto was possibly contemplating an attack upon him. The basis of his fear of attack by Mr Amatto was Mr Amatto's threats in the gaming room that he would 'stab' or 'gut' Mr Flanagan. However, on an overall consideration of the evidence on that issue, I have some difficulty in accepting Mr Amatto's argument with Mr Flanagan in the gaming room contained such explicit and physically threatening words. There was certainly a verbal argument between them. On the evidence of the publican, Mr Thompson, it would seem that Mr Flanagan was being verbally as aggressive, if not somewhat more so, than Mr Amatto was. As best as I can determine, words were exchanged and insults may well have been traded.
65 If, as asserted by Mr Flanagan, Mr Amatto did utter direct and serious threats to 'stab' or 'gut' him, such threats should have triggered in Mr Flanagan, as a police officer, a reaction that was designed to ensure he removed himself as a matter of priority from anywhere in the vicinity of Mr Amatto and report Mr Amatto's comments to the local police. Nevertheless, both men were intoxicated and, on Mr Flanagan's part, his judgment as to such a response may have been somewhat impaired. According to Mr Flanagan, he was mildly to moderately affected by alcohol.
66 When the fight erupted involving Mr Flanagan, Mr Amatto and others at the Wellington Hotel, the publican, Mr Thompson, called the local police. It should be noted, as I understand it, Ms Humphries also called the police, but at a time after Mr Thompson. In any event, two police officers attended the incident as a result of Mr Thompson's call. They were, at that time, Senior Constable Bradley Edwards (now Sergeant) and Constable Renee Smith. At that time they spoke with both Mr Amatto and Mr Flanagan but neither Senior Constable Edwards nor Constable Smith made any contemporaneous notes of their conversations with Mr Flanagan or Mr Amatto in their notebooks. Rather, they both produced statements of their recollection of the events sometime afterwards. Senior Constable Edwards' statement is dated 1 June 2006 and Constable Smith's statement is dated 31 May 2006.
67 Sergeant Edwards acknowledged it was possible that there may have been some aspects of his conversation with Mr Flanagan that did not ultimately appear in his statement. Nevertheless, he believed what he put in his statement was pertinent to the incident as he recalled it. In somewhat similar terms Constable Smith acknowledged likewise.
68 Putting aside Senior Constable Edwards' statement for the moment, he did make a contemporaneous record of the event. As the senior officer attending the incident and as Mr Flanagan was an off-duty but serving police officer, he was required to report the incident to relevant senior officers. He reported in the first instance to Inspector Alan Cusack, the then duty officer of the Orana LAC. He also reported the incident to Senior Sergeant Hurst who was the police officer in charge of the Wellington Police Station. Both of those reports were made verbally during his shift. As well, on the morning of Sunday, 16 April, prior to finishing his night duty shift, Senior Constable Edwards sent a written report to Inspector Cusack, a copy of which was sent to Senior Sergeant Hurst. Relevantly, that report stated as follows:
I spoke with Constable Flanagan who informed me that he had been abused by Amatto and that he had attacked him and that he had been assaulted. He stated he was unsure if he wished to make a complaint at that stage ... To this time, 6:10am Sunday 16 April no one has made a complaint of any kind. I have created a COPS event in relation to the matter and will be guided by any complaints that come to hand.
69 The COPS entry made by Senior Constable Edwards at the time was relatively brief and simply noted that an altercation had taken place involving a number of persons at the Wellington Hotel, that police have obtained the names of all persons involved and had viewed the CCTV capture of the incident. It also confirmed that no complaints had been received at the time that entry was made and enquiries were continuing.
70 There were subsequent entries made into the COPS system involving this matter, particularly the attendance on or about midday, 16 April 2006 when Mr Amatto's mother attended the Wellington Police Station. According to the COPS entry made at that time, she advised the police her son had been assaulted by Mr Flanagan and that he would be making a formal complaint about the incident after receiving advice from the Western Aboriginal Legal Service.
71 What is of concern, in my view, is that in neither of his written reports about the incident, compiled relatively contemporaneously by Senior Constable Edwards, is there any mention that Mr Flanagan complained that Mr Amatto had threatened to 'stab' or 'gut' him or to stab police officers generally. Such a threat, if made, is a very serious one. It is difficult to accept, if it had been made in the terms as asserted by Mr Flanagan, he would not have told Senior Constable Edwards or Constable Smith. It was, after all, the issue that was central to Mr Flanagan's behaviour towards Mr Amatto. That is, a known criminal with a history of violence had threatened Mr Flanagan and police generally in the most threatening and explicit of terms.
72 Nothing was put to Senior Constable Edwards to suggest Mr Flanagan had reported threats in such terms to him. Further, I do not believe, if he had, that Senior Constable Edwards would not have made mention of that in his written report to Inspector Cusack on the morning of 16 April 2006, before he went off duty. I also believe he would have made mention of it in his initial COPS entry about the incident and his subsequent statement.
73 The fullest extent of the substance of Mr Flanagan's report of events between he and Mr Amatto on 15 April 2006 is recorded by Senior Constable Edwards in his statement of 1 June 2006 relevantly as follows:
[8] I said, "What has happened?" FLANGAN said, "I was here having a good time when some bloke came in playing the poker machines. He looked at me and started calling me names, and yelling stuff at me because he knew I was a Police Officer. I tried to ignore him but I was worried he would start on Lexi. I got up after he left and Lexi and I walked into the bar area. He walked past and I didn't know if he had something in his hand or not so I shoved Lexi out of the way and we got into it. The next I knew this big aboriginal bloke grabbed hold of me and we got into it as well. Everyone jumped in and Ian came in and they threw the bloke out. He smashed the window on the way out.' I said, "Were you assaulted?" FLANAGAN said, "Yeah, by both of them." I said, "Do you wish to make a complaint?" FLANAGAN said. "Not yet, I'll think about it," I said, "If you do wish to make a complaint let me know." ...
74 As is evident on a reading of the above extract, the highest point of Mr Flanagan's response to Senior Constable Edwards' question as far as complaining about Mr Amatto's behaviour in the gaming room was that Mr Amatto 'looked at me and started calling me names and yelling stuff at me because I was a police officer.' Such a report is a far cry from Mr Flanagan's formal complaint in the Intelligence Report prepared by him some three days later, or his later statement in these proceedings that Mr Amatto had threatened to 'stab' and 'gut' him and to stab police generally.
75 It is only when those threats are asserted by Mr Flanagan that they put into context his statement that Mr Amatto 'may have had something in his hand' that caused Mr Flanagan to be concerned. In other words, if Mr Amatto had not physically threatened him in such terms, Mr Flanagan would presumably have had no cause to believe Mr Amatto would have had anything threatening in his hand.
76 In my view, if Mr Flanagan, at that time, genuinely held a belief that Mr Amatto had something in his hand together with his alleged earlier threats to 'gut' or 'stab' Mr Flanagan, the first thing Mr Flanagan would have done when the local police arrived would have been to tell them that. Such a sequence of events is the crux of Mr Flanagan's claim of self defence. That is, given the prior threats of serious physical violence towards him by Mr Amatto, a known criminal, he undertook as it were, a preemptive strike.
77 That no report in such terms was made at the very first opportunity is compelling, in my view, as to the inference that arises. That is, that no threats in such terms were made by Mr Amatto towards Mr Flanagan on 15 April 2006. As well, Mr Flanagan's report to Senior Constable Edwards that Mr Amatto 'may have had something in his hand' is elevated in his Intelligence Report three days later that, in the foyer, he believed Mr Amatto 'had returned to carry out his threat and that he may have had a knife'. It is difficult to accept that if Mr Flanagan genuinely believed Mr Amatto 'may have had a knife' he would have initiated his aggressive behaviour towards Mr Amatto in the way he did. Overall, I believe Mr Flanagan significantly overstated the extent of any statements made by Mr Amatto to him in the gaming room as well as his belief as to what Mr Amatto may have had in his hand when he encountered him in the foyer.
78 Further weight is given to such a conclusion when it is remembered that Mr Flanagan took no steps to initiate any formal complaint of his own volition by attending Wellington Police Station on 16 or 17 April 2006. In my view, any police officer who has had such a serious threat of physical violence made towards him and/or police generally, as alleged by Mr Flanagan, would, in normal circumstances, ensure such threats were conveyed to the local police. That Mr Flanagan did not do so when he had the opportunity to do so weighs adversely against him when accepting the truth or otherwise as to the extent of any threats made by Mr Amatto on the night in question as well as Mr Flanagan's asserted belief that his physical wellbeing was so threatened by Mr Amatto and what he might do that Mr Flanagan was justified in initiating his assault on Mr Amatto.
79 On this issue, there was an addendum made by Senior Constable Edwards to his statement dated 5 July 2006 in which he stated as follows:
It has been raised that there may of been an arrangement made by attending Police (Myself and Constable Renee SMITH) to attend the premises of FLANAGAN's Father In Law the following day, to receive a complaint, and Police did not attend.