Presidential Security Services of Australia Pty Ltd v Clinton Joseph Brilley

(a) civil liability in respect of intentional act that is done with intent to cause injury or death … - the whole Act except: (i) …, and (ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death."

82 It is not in dispute that the plaintiff's conduct in breaking and entering the Club constituted a criminal offence. The defendant had raised Pt 7 as a defence. Section 3B(1)(a)(ii) exempts Pt 7 (in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death) from the exclusionary provisions contained in s 3B(1)(a). Accordingly, her Honour was correct in assuming that Pt 7 applied to the determination of the plaintiff's claim. The primary judge's reasons for regarding Mr Bingle's evidence as "unreliable"

83 Under the heading "The Evidence", O'Toole DCJ said that the plaintiff "was frank with counsel and court". She said (at [16]): "There are material inconsistencies in Mr Bingle's evidence. There are gross discrepancies between his deposition, his sketch plan, the speculative statement made to police (exhibit 8) and data he recorded haphazardly in exhibit 10. Part of Mr Bingle's evidence is implausible.

Mr Bingle reacted to cross-examination with inappropriate mirth. His elaborate facial expressions, unnaturally lengthy periods of silence during cross-examination and apparent difficulty reading, with and without his spectacles, conveyed the impression that his eyesight and whatever he remembers of 23 June 2003 are unreliable." 84 There are various difficulties in determining what her Honour meant by the "material inconsistencies in Mr Bingle's evidence." 85 The Judge did not identify the "gross discrepancies" to which she referred. Mr Deakin QC, who together with Mr Stockley and Ms Beck appeared for the defendant, drew attention to the following exchange during closing addresses: "Her Honour: This man is, on his own description - I think his own statement, which was made after several hours in the police station, I think he said, or a few hours, something to that effect - is materially inconsistent with what he said in oral evidence. Stockley: Perhaps your Honour ought to direct my attention to the particular inconsistency with which you're concerned. Her Honour: I infer that his behaviour was furtive. He wanted to catch these people, for what - I mean perhaps he thought he was defending - - ". 86 As Mr Deakin submitted, her Honour indicated neither to counsel appearing for the defendant at the trial (even when specifically asked to identify the inconsistencies she had in mind) nor in her reasons what the material inconsistencies were which led to her view of Mr Bingle's credibility. 87 Mr Barry submitted that her Honour's reference to Mr Bingle's "deposition" was intended by her to mean his oral evidence. I think that explanation is correct. The word is otherwise unintelligible. In my view the only material discrepancy between Mr Bingle's oral evidence and his police statement is the fact that, in his police statement (as opposed to his oral testimony), he made no reference to being induced to shoot because the men were moving towards him. 88 Mr Bingle's sketch plan shows him in the bistro. I understood Mr Barry to submit that the sketch plan was inconsistent with the oral evidence because in the oral evidence Mr Bingle said he fired when he was in the foyer but the sketch plan shows that he was in the bistro. In addition, photographs show a bullet hole in the door leading from the bistro to the foyer, leading to the inference that he shot when he was standing in the bistro and not when he was standing in the foyer. 89 In cross-examination Mr Bingle agreed that when he drew the diagram he wanted to indicate to the police the position "of these people" when he started shooting. Nevertheless, it was not put directly to Mr Bingle that he was in the bistro and not in the foyer when he started shooting and the implications of the photographic evidence in this respect were also not put to him. Whether her Honour had these matters in mind is not at all clear because she said nothing about them. 90 It is also an open question, assuming that Mr Bingle's oral evidence is indeed inconsistent with his sketch, whether these matters amount to a material inconsistency. Were Mr Bingle to have been in the bistro when he shot the plaintiff, he would have been further away from the plaintiff and the other intruders than were he to have been in the foyer. Perhaps it could be said that, for that reason, he should have been less frightened than he was. That is a debatable issue. There might only be a metre or two in any discrepancy that might arise. The discrepancy does not appear to have been debated at trial and was not discussed in her Honour's reasons. The weight, if any, that her Honour attached to it is unknowable. 91 Mr Barry submitted that the speculative statement Mr Bingle made in his police statement, to which her Honour referred, was his assumption that the men were armed. Of course, that statement is speculative, but the assumption Mr Bingle made is not difficult to understand. How this assumption reflects adversely on Mr Bingle's evidence is not apparent, nor - again - is the weight, if any, that her Honour attached to it. 92 The data Mr Bingle "recorded haphazardly in exhibit 10" appears to be the dates on which he acquired the Glock and the Magnum respectively. It may be that those dates were incorrect (Mr Bingle's memory of when he in fact acquired the weapons was uncertain) but this was an entirely irrelevant matter as far as the issues at the trial were concerned.

The videotape from the security cameras 93 A security video camera was operating in the Club from the time that the plaintiff entered until the time that he left. According to the videotape evidence, the plaintiff was first observed in the foyer at 4:21:38. At 4:21:55 the videotape showed a figure in a dark top and light trousers (who we were informed was the plaintiff) heading towards the fire exit. It seems that more or less at about 4:21:55 the plaintiff was touching the door of the fire exit. Counsel for the plaintiff at trial suggested that the videotape showed this person at that stage with his hands in the air, but her Honour said "right arm abducted to about 80 degrees, elbow flexed, that's what I can see". It was suggested to her Honour that the left arm appeared to be raised as well. The judge replied, "I hear what you say". 94 There are three relevant features of the videotape evidence. Firstly, the first time the plaintiff was recorded on the camera was at 4:21:38 when he entered the foyer. About 17 seconds later he was shown touching the door of the fire exit. This suggests that over this brief period the shooting leading to the wounding and the episode when Mr Bingle shot the empty gun at the plaintiff, occurred. Secondly, the judge only saw the plaintiff with his right arm raised and not both arms. Thirdly, the camera did not record the plaintiff falling to the floor, wounded, nor did it record the incident alleged by the plaintiff when Mr Bingle was said to have pointed the Magnum at his upper torso and pulled the trigger four times (i.e. when only clicks were heard). 95 The brevity of the period from the time Mr Bingle first saw the plaintiff in the car park until the plaintiff left the foyer emphasises the improbability that Mr Bingle acted in a considered and premeditated way. It is also cogent evidence that Mr Bingle's conduct was largely instinctive. In addition, the videotape casts doubt on the plaintiff's allegation that he had both hands in the air. 96 The fact that the videotape does not show Mr Bingle unsuccessfully trying to shoot the plaintiff seems to be of little moment as it is common ground that the plaintiff fell to the floor after he was wounded and the camera did not record that either. I infer that the camera was not able to photograph certain areas of the foyer where some of the relevant events occurred. It may be that the camera was not able to photograph the plaintiff with both his hands in the air. None of these matters was explored in evidence or her Honour's reasons.

Difficulties with the primary judge's factual findings 97 After referring to the parties respective versions, O'Toole DCJ said (at [21]), "Attributing appropriate weight to vague, conflicting, unsatisfactory and unchallenged evidence, I find the following facts", and she proceeded to set out the facts she so found. 98 Her Honour did not say in her reasons that she disbelieved all of Mr Bingle's evidence. It seems from her factual findings that she believed some of it. For example, her Honour accepted Mr Bingle's evidence as to his conduct before the plaintiff entered the Club and even for part of the time the plaintiff was in the foyer. Furthermore she observed (at [16]): "Mr Bingle's speech impediment reinforces one's inference from the remainder of the evidence that any warning he gave before shooting Mr Brilley was belated or was ineffectual."

This appears to be an acceptance of Mr Bingle's evidence that he gave a warning before shooting the plaintiff even though the plaintiff denied that he had been given one. This is not an insignificant finding in Mr Bingle's favour. The judge accepted that, when Mr Bingle was first able to see into the foyer, he was surprised to find more than one person there.

99 Accordingly, it cannot be inferred that her Honour regarded all of Mr Bingle's evidence as vague, or unsatisfactory. As her Honour did not state what particular evidence she regarded as vague, as conflicting, and as unsatisfactory, it is difficult, and at times impossible, to discern from her reasons what evidence the judge regarded as deserving of these epithets. It is also not possible to discern what weight her Honour attributed to any particular piece of evidence that fell within these categories. Accordingly, it is not possible to discern, in any reasonably comprehensible way, all the elements of the reasoning process that led to her Honour finding the facts that she did. 100 O'Toole DCJ's failure to identify the material inconsistencies she believed to exist, the virtual impossibility of discerning what inconsistencies she had in mind and in understanding why her Honour regarded them as material, and the lack of reasons explaining why parts of Mr Bingle's evidence were rejected while others were accepted, are basic problems with her Honour's credibility findings as a whole. 101 Her Honour made no mention of the videotape evidence. I have drawn attention to its relevance. In my view the judge's omission to refer to it suggests that she did not take it into account. Such an omission would, alone, be a material error in the fact-finding process. The facts found 102 The judge accepted (at [35]) Mr Bingle's evidence that he saw the plaintiff's vehicle enter the car park, and that he took out his gun and crouched on the floor of the bistro to conceal himself. She accepted that Mr Bingle glimpsed a figure with a muffled face peering into his own vehicle. She found Mr Bingle moved towards the entrance of the bistro and stood in the bistro near the entrance to the lobby. Her Honour accepted that Mr Bingle wished to hear the break in without being seen, because he thought there would be a stronger case against them for "break and enter" if they actually came inside. 103 The judge found (at [36]) that, after Mr Bingle heard the noise of the crowbar on the fire exit door, and while he was standing in the bistro near the entrance to the lobby, he held the Magnum in both hands, with the intention of firing it. He shot the plaintiff as the latter was walking across the lobby towards the gambling room. 104 Her Honour found that the following then occurred (at [37]): "Mr Bingle stepped into the lobby. He was surprised to see another person/s near the fire exit. Mr Bingle 'opened fire' towards the fire door. Mr Brilley's accomplice/s fled. Mr Brilley stood, raised his hands in the air and yelled: 'Don't shoot, I'm not armed'. Mr Bingle turned, pointed the magnum at Mr Brilley's head and chest and pressed the Magnum's trigger repeatedly. The Magnum clicked repeatedly. … Mr Brilley seized the opportunity: he ran across the lobby through the fire exit door and down the Club's front steps …." 105 The judge held (at [38]) that as the plaintiff was driving away he heard a shot. As he started to accelerate there was another shot and the back window of his vehicle shattered.

The primary judge's "conclusions" 106 The observations of O'Toole DCJ set out under this heading are contained in her Honour's reasons under the heading "Conclusions". 107 After he had to some extent recovered from his injuries, the plaintiff was arrested and charged with aggravated breaking and entering with intent to commit the offence of stealing from the Club. He pleaded guilty to the offence. Woods DCJ sentenced him to two and a half years imprisonment with a non-parole period of 18 months for the offence. Her Honour, in commenting on the sentencing remarks of Woods DCJ, said (at [18]): "Reliable evidence in Mr Brilley's civil claim undermines the propositions which his Honour accepted: that Mr Bingle 'identified himself as security', that Mr Brilley 'did not comply with [Mr Bingle's] direction to surrender' and that Mr Bingle was justified in discharging the Magnum as Mr Brilley 'drove off …' ".

108 Her Honour said (at [55]): "Cumulatively, Mr Bingle's intentional actions on 23 June 2003 in wounding Mr Brilley, in attempting to shoot Mr Brilley repeatedly at short range, and in shooting at [the plaintiff's vehicle], caused Mr Brilley's serious injuries and the recurrent emotional distress. That conduct, in the course of Mr Bingle's duties to Presidential Security, was motivated by his callous intention to cause injury. None of Mr Bingle's actions was in self defence or was in defence of the Club's property. Mr Bingle behaved with reckless indifference to his own safety, to Mr Brilley's safety, to the accomplices' safety and to neighbouring residents' safety. Mr Bingle's conduct probably constitutes an offence/s as defined in s 54 of the Civil Liability Act ." 109 Her Honour proceeded (at [56] - [57]): "The evidence persuades me that the circumstances of Mr Brilley's case are exceptional and that this Court's failing to award him damages would be harsh and unjust. Therefore it does not seem to me that the Civil Liability Act precludes this Court's (sic) awarding Mr Brilley damages for non-economic loss. It seems to me the Court should award Mr Brilley aggravated damages for his pain, outrage, acute and recurrent emotional distress caused by Mr Bingle's arrogant malevolent conduct. The Court should award Mr Brilley exemplary damages to punish, to deter and to convey the Court's disapproval of Mr Bingle's callous, deliberate conduct."

Section 54: the elements of self-defence and the onus of proof 110 Section 54 relevantly provides: "(1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that: (a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and (b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage. (2) This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence). Note. Sections 52 and 53 can apply to prevent or limit recovery of damages even though the defendant's conduct constitutes an offence. (3) A serious offence is an offence punishable by imprisonment for 6 months or more.

(4) …. (5) This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned."

111 It was not in dispute that the injuries to the plaintiff occurred at the time of, or following, conduct on his part that constituted a serious offence and that conduct contributed materially to his injuries. Thus the elements of s 54(1) were satisfied. 112 Sub-section (2) of s 54 provides that the section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the injury concerned constitutes an offence (whether or not a serious offence). O'Toole DCJ found (at [55]) that "Mr Bingle's conduct probably constitutes an offence/s as defined in s 54 of the Civil Liability Act." Her Honour did not specify which conduct of the defendant (not Mr Bingle) constituted "an offence/s as defined". She did not identify the "offence/s" concerned. The defendant challenged the findings her Honour so made. 113 As I have mentioned, the plaintiff did not file a reply averring that s 54(2) applied and was an answer to any reliance by the defendant on s 54(1). Proper practice required such a reply. Neverthless, the judge's findings that none of Mr Bingle's actions was in self-defence or was in defence of the Club's property, and that his conduct "probably constitutes an offence/s as defined in s 54 of the Civil Liability Act", demonstrate that s 54(2) was in issue at the trial. 114 Mr Barry accepted that at trial the plaintiff only contended that Mr Bingle had committed an assault. In the circumstances, it was not open to the primary judge to make findings (which she appears to have done) that Mr Bingle had committed offences other than assault. Her Honour did not find specifically that Mr Bingle had committed a criminal assault. She made findings that he had committed an unidentified number of unidentified offences. 115 Plainly, Mr Bingle's act of shooting and wounding the plaintiff was capable of constituting the offence of assault occasioning actual bodily harm. This offence is defined by 59(1) of the Crimes Act 1900 as follows: "(1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years. … 116 In R v Lynsey [1995] 3 All ER 654 Henry LJ, in delivering the judgment of the English Court of Appeal, Criminal Division, said (at 656): "In the courts, assault has generally become synonymous with battery, that is to say when the word assault was used it normally meant the intentional use of unlawful force to another's person without his consent used." 117 The only distinction between the offence created by s 59(1) and common assault (which is an offence under s 61) is that under s 59(1) the causing of actual bodily harm is required. Thus, in effect, s 59 is based on the usage recognised in R v Lynsey. 118 According to Brent Fisse, Howards Criminal Law, 5th ed (1990) The Law Book Company, Sydney, 1990 at 138 "[i]t is not easy to find a statement of the common law of assault which is both authoritative and precise". A neat statement of the elements of the crime, however, can be found in the judgment of Lord Simon in Director of Public Prosecutions v Morgan [1976] AC 182. In discussing the nature of crimes of basic intent, his Lordship said at 216 - 217: "I take assault as an example of a crime of basic intent where the consequence is very closely connected with the act. The actus reus of assault is an act which causes another person to apprehend immediate and unlawful violence. The mens rea corresponds exactly. The prosecution must prove that the accused foresaw that his act would probably cause another person to have apprehension of immediate and unlawful violence, or would possibly have that consequence, such being the purpose of the act, or that he was reckless as to whether or not his act caused such apprehension. This foresight (the term of art is 'intention') or recklessness is the mens rea in assault."

119 Thus, the actus reus of common assault is an act which causes another person to apprehend immediate and unlawful violence without consent. The mens rea of assault requires either intention or recklessness. The offences under s 59 and s61 of the Crimes Act require no less. 120 In determining whether particular conduct of Mr Bingle (and the defendant) constituted the offence of assault, her Honour was required to consider and determine whether in relation to such conduct, Mr Bingle acted in self-defence. 121 The criminal law defence of self-defence is found in s 418 of the Crimes Act, which provides: "(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them." 122 As Howie J, after a careful review of the relevant authorities, explained in R v Katarzynski [2002] NSWSC 613, s 418 involves a two-stage inquiry. First, a subjective question is asked: is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself? The question is subjective because it focuses on what the person claiming self-defence actually perceived. If the answer to the first question is yes then, secondly, an objective question is asked: is there a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them? 123 By s 419 of the Crimes Act, in criminal proceedings the prosecution has the onus of proving, beyond reasonable doubt, that the accused person did not carry out the relevant conduct in self-defence. This is part of the "golden thread" which requires the prosecution to prove guilt beyond reasonable doubt and it is also a rule that protects the accused person's right of silence. These considerations do not apply in civil proceedings. I see nothing in the Civil Liability Act that requires these criminal law notions to be applied to the potential riposte afforded by s 54(2) to a plaintiff who is met with an argument based on s 54(1). 124 By s 54(1), a court is "not to award damages" in respect of liability to which Pt 7 applies if the court is satisfied that the injuries to the plaintiff occurred at the time of, or following, conduct that, on the balance of probabilities, constitutes a serious offence on the plaintiff's part which contributed materially to his or her injuries. Section 54(1) does not concern the liability of the defendant, it is directed against an award of damages, rather than the existence of a liability. It is a section that should be pleaded by the defendant as an answer to the plaintiff's claim for damages. General principles of statutory construction, and fairness, lead to the conclusion that it is for the defendant to establish the matters in sub-paras (a) and (b) of s 54(1) that, by s 54(1), have to be proved to the satisfaction of the court. The section provides expressly that such proof is to be on a balance of probabilities. 125 Section 54(2) affords a plaintiff an answer to any reliance by a defendant on s 54(1). Save where a defendant raises self-defence as an answer to a plaintiff's allegation that the relevant conduct of the defendant constitutes an offence, it is for the plaintiff to plead and prove that s 54(2) applies. Although the section makes no express mention of proof on a balance of probabilities, there is nothing to suggest that the usual rule in civil proceedings does not apply; the burden of proof on the plaintiff is on the balance of probabilities. 126 Where a defendant does raise self-defence to a plaintiff's contention that the defendant's conduct constitutes an offence, it is for the defendant to plead and prove that his or her acts, on which the plaintiff relies, were themselves performed in self-defence. The defendant, after all, is far more likely to be better equipped than the plaintiff to prove the elements of self-defence. The onus on the defendant will be on a balance of probabilities. 127 Section 52(2) of the Civil Liability Act is in precisely the same terms as s 418(2) of the Crimes Act. In my view, that has no bearing on the matters relating to burden of proof under the Civil Liability Act to which I have referred under this heading.

The primary judge's treatment of s 54 128 As I have observed, in this case both s 54(1) and s 54(2) were in the ring (reliance on s 54(2) being based on the offence of assault having been committed by Mr Bingle). The primary judge dealt with s 54(2) by making, in essence, five findings. The first was that the "cumulative" effect of Mr Bingle's "intentional actions" (which were "arrogant[ly] malevolent") during the three episodes on 23 June 2003 caused the plaintiff's injuries (including emotional distress). The second was that Mr Bingle's conduct "was motivated by his callous intention to cause injury". The third was that none of Mr Bingle's actions was in self- defence or in defence of the Club's property. The fourth was that Mr Bingle behaved with reckless indifference to the safety of himself, the plaintiff, the accomplices and neighbouring residents. The fifth was that "Mr Bingle's conduct probably constitutes an offence/s as defined in s 54 of the Civil Liability Act." 129 There are a number of serious problems with these findings. 130 As regards the first of these findings, I have earlier pointed out that each of the three incidents constitutes a separate tort. They were each essentially different. The first involved the infliction of a physical injury, the second involved Mr Bingle pointing a gun at the plaintiff's upper body when he was in the process of confronting him and the third involved Mr Bingle firing two shots at the car in which the plaintiff was escaping. Of course, there must have been a significant cumulative effect on the plaintiff in consequence of each tort. But each tort caused different damage and the damage flowing from each should have been identified and quantified. Moreover, the elements of each tort have to be proved separately, even though in some instances the conduct of Mr Bingle in one or more incidents might bear on his conduct in the others. The impression given by her Honour's reasons is that she used the cumulative effect of the conduct in each incident to prove that each tort had been committed. This may, in theory, be possible, but it does require the judge to set out details of her reasoning and the matters she has taken into account in regard to each tort so it can be seen that there has been no error. No such details are given in her Honour's reasons. 131 This "cumulative approach" is of particular relevance to the second finding, namely, that Mr Bingle's conduct was motivated by his "callous intention to cause injury". While it was plainly open to her Honour to find that Mr Bingle intended to cause injury to the plaintiff in the first two episodes, that is not at all clear as regards the third. 132 But there is more to the finding of callous intention to cause injury than that. This finding must be seen together with the fourth finding that Mr Bingle behaved with reckless indifference to the safety of himself, the plaintiff, the accomplices and neighbouring residents. The primary judge appears to have used these two findings to justify her findings that none of Mr Bingle's actions was in self-defence or was in defence of the Club's property and that his conduct probably constituted "an offence/s as defined in s 54 of the Civil Liability Act." Such an approach reveals a fundamental error. Intent to cause injury does not negate the defence of self-defence. A finding of callous intention to cause injury says nothing about whether, in causing that injury, the defendant acted in self-defence. 133 It is necessary to distinguish the intent or mens rea that forms part of an offence or tort such as assault or battery from the elements of the defence of self-defence that may be raised to such a charge or tort. The intent to cause the assault or battery is the mens rea or tortious intent that is part of the crime or intentional tort sought to be defended. In the case of battery, for example, it is the intent to cause physical contact. Obviously, this intent cannot negate the assertion of self-defence. This is because the defence of self-defence follows a completed crime or tort, meaning one where all the elements, including the necessary mental element, have been made out.

134 This is illustrated by R v Kurtic (1996) 85 A Crim R 57, which concerned the malicious infliction of grievous bodily harm under the then s 35 of the Crimes Act. Hunt CJ at CL (with whom Grove J and Barr AJ agreed) said (at 62): "(The) issue of self-defence did not arise until the Crown had first established each of the basic ingredients of the crime with which the appellant had been charged, for self-defence must be considered upon the basis that such ingredients have been made out. In determining whether those basic ingredients have been made out, the tribunal of fact is entitled to take into account the evidence which relates to the issue of self-defence, but care must be taken that there is no conflict between those facts accepted for the purpose of determining the latter and those accepted for the purpose of determining the former.

The first of the issues which arose and which had to be determined in the present case was therefore whether the Crown had established that the appellant inflicted the injuries maliciously. S5 of the Crimes Act provides that any act which is done with an intent to injure without lawful excuse or done recklessly or wantonly shall be taken to have been done maliciously. Self- defence has been described as raising a plea by way of justification or excuse, but it seems to me that to introduce the issue of self-defence at the stage of considering whether the basic ingredients of the offence have been made out is productive of confusion and, to some extent, a danger of a circularity in reasoning." (Footnotes omitted).

135 Thus, self-defence and the intent to injure (including a "malicious" intent as it was in R v Kurtic) are not mutually exclusive. As Hunt CJ at CL stated, a consideration of self-defence follows only after the elements of the offence have been satisfied, including the proof of an intention to injure. 136 There are further difficulties with the findings that none of Mr Bingle's actions was in self-defence or was in defence of the Club's property and that his conduct probably constituted "an offence/s as defined in s 54 of the Civil Liability Act." These stem from her Honour's omission to analyse the elements of the offence of assault and to consider the facts in relation to each of the three episodes so as to determine whether those elements were proved.

137 There is nothing in the primary judge's reasons that indicates that she undertook the two-stage inquiry that, as is explained in R v Katarzynski [2002] NSWSC 613, is necessary in determining whether self-defence was established. Her Honour does not appear to have considered, in regard to any of the episodes, whether Mr Bingle believed that his conduct was necessary in order to defend himself. Nor does she appear to have considered whether there was a reasonable possibility that what Mr Bingle did in relation to each episode was a reasonable response to the circumstances as he perceived them to be. In my view, these matters alone require the judgment to be set aside. After all, the defendant's answer to the plaintiff's claim was largely based on self-defence.

Section 54: Can the defendant be vicariously liable for the criminal assault committed by Mr Bingle? 138 I have pointed out that, in response to the allegation in the amended statement of claim that Mr Bingle was a servant or agent of the defendant and the assertion that, "at all material times the defendant was (vicariously) liable for the actions of [Mr Bingle]", the defendant admitted that "it was vicariously liable for same". 139 In his closing address at trial, counsel for the defendant submitted that, despite this admission, were the primary judge to find that Mr Bingle's actions were not "justifiable" and that "he was not performing acts that he was employed to do", such conduct on his part "would take him outside the scope of his employment". In my opinion, this submission, at that particular stage, did not detract from the defendant's admission in the pleadings. The defendant must be taken to have admitted that it was vicariously responsible for the actions of Mr Bingle on 23 June 2003. 140 The question that then arises (which was addressed neither by counsel at the trial, nor her Honour, and which was for the first time raised on appeal by this Court), is whether the defendant, as a company, could be liable for the offence of assault. In other words, can a corporation commit an assault? If so, was the defendant company liable for the offence of assault on the facts of the case. Once the plaintiff sought to rely on s 54(2), these questions had to be resolved. 141 There are two classes of criminal offence that a company cannot commit. The first class arises by virtue of a company's status as an unnatural or artificial person. For example, a company cannot commit suicide or bigamy. The second class arises by virtue of the company's inability to be punished. Thus, a company cannot commit a crime where the only punishment is a term of imprisonment. These matters are discussed in the judgment of Stable J delivered on behalf of the English Court of Criminal Appeal in R v ICR Haulage Limited [1944] 1 KB 551 at 554: "The offences for which a limited company cannot be indicted are, it was argued, exceptions to the general rule arising, from the limitations which must inevitably attach to an artificial entity, such as a company. Included in these exceptions are the cases in which, from its very nature, the offence cannot be committed by a corporation, as, for example, perjury, an offence which cannot be vicariously committed, or bigamy, an offence which a limited company, not being a natural person, cannot commit vicariously or otherwise. A further exception, but for a different reason, comprises offences of which murder is an example, where the only punishment the court can impose is corporal, the basis on which this exception rests being that the court will not stultify itself by embarking on a trial in which, if a verdict of [g]uilty is returned, no effective order by way of sentence can be made. In our judgment these contentions of the Crown are substantially sound … ." 142 The second class referred to by Stable J has all but been eradicated in Australia following the passage of legislation converting physical sentences and punishments into fines. In NSW, this was achieved by s 16 of the Crimes (Sentencing Procedure) Act 1999: 16 Fines for bodies corporate for offences punishable by imprisonment only If the penalty that may be imposed (otherwise than under this section) for an offence committed by a body corporate is a sentence of imprisonment only, a court may instead impose a fine not exceeding: (a) 2,000 penalty units, in the case of the Supreme Court, the Court of Criminal Appeal, the Land and Environment Court, the Industrial Relations Commission or the District Court, or

(b) 100 penalty units, in any other case. 143 Thus, to use the example of assault occasioning actual bodily harm, a company is capable of committing the crime despite punishment under s 59 (and s 61) of the Crimes Act being in the form of imprisonment alone (see, by analogy, P & O European Ferries (Dover) Ltd (1991) 93 Cr App R 72 where Turner J held that a corporation may be found guilty of manslaughter and Attorney-General's Reference (No 2 of 1999) [2000] QB 796). 144 The fact that a company is capable of committing a crime and may be indicted for an offence does not, however, mean that the inherent characteristics of an artificial person are not relevant to whether a company may be found guilty of certain offences, particularly those offences of which mens rea is an element. 145 Generally speaking, once a company is capable of committing a particular offence, it may be found guilty of that offence on one of two bases, namely, on the grounds of vicarious responsibility or on the basis that the person who committed the actus reus and had the requisite mens rea was the directing mind and embodiment of the company in the Tesco Supermarkets Ltd v Nattrass [1972] AC 153 sense. 146 Whether the company may be found guilty on one or other of these bases depends on the legislation applicable, the nature of the offence in question, and the status and position within the company of the person who performs the acts said to constitute the offence. 147 Generally, a company will not be found guilty, on the basis of vicarious liability, for a criminal offence having mens rea as an element. This is traceable to at least the eighteenth century. In Huggins (1730) 2 Stra 883, Raymond CJ stated at 885: "It is a point not to be disputed but that in a criminal case the principal is not answerable for the act of his deputy, as he is in civil cases; they must each answer for their own acts, and stand or fall by their own behaviour." 148 As Lord Morris and Lord Diplock explained in Tesco Supermarkets Ltd v Nattrass, the rejection of vicarious liability in the criminal context is based upon a refusal to attach criminal liability to a person absent a guilty mind. Lord Morris said, (at 179): "In general, criminal liability only results from personal fault. We do not punish people in criminal courts for the misdeeds of others. The principle of respondeat superior is applicable in our civil courts but not generally in our criminal courts." Lord Diplock said, (at 199): "To constitute a criminal offence, a physical act done by any person must generally be done by him in some reprehensible state of mind. Save in cases of strict liability where a criminal statute, exceptionally, makes the doing of an act a crime irrespective of the state of mind in which it is done, criminal law regards a person as responsible for his own crimes only. It does not recognise the liability of a principal for the criminal acts of his agent: because it does not ascribed to him his agent's state of mind. Qui peccat per alium peccat per se is not a maxim of criminal law."

See, generally, Ford's Principles of Company Law, 13th ed (2007) Butterworths at para 16.120 and R v Murray Wright Ltd [1970] NZLR 476 (New Zealand Court of Appeal).

149 I reiterate that, absent a statutory provision to the contrary, vicarious liability has been rejected as a means of establishing mens rea in crimes requiring proof of that element (as otherwise criminal guilt could be found without the offender possessing the necessary intent). 150 The situation is different, however, where mens rea does not form part of the offence. Parliament may create offences of strict or absolute liability, and it has long been accepted that, in such a case, the application of vicarious liability principles is not inhibited. 151 The following statement of Atkin J in Mousell Brothers Ltd v London and North-Western Railway Co (1917) 2 KB 836 at 845 is usually referred to as the leading authority in this area: "I think that the authorities cited by my Lord make it plain that while prima facie a principal is not to be made criminally responsible for the acts of his servants, yet the legislature may prohibit an act or enforce a duty in such words as to make the prohibition or the duty absolute; in which case the principal is liable if the act is in fact done by his servants. To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed."

152 Mousell Brothers Ltd v London and North-Western Railway Co was applied by the High Court of Australia in The King and The Minister for Customs v Australasian Films and Another (1921) 29 CLR 195. The Court said at 215: "We proceed to consider, by applying the tests suggested by Atkin J [in Mousell Brothers Ltd v London and North-Western Railway Co ], whether sec 241 of the Customs Act has the effect of making the principal, if a company, liable for the act of its servant or agent when the person doing the act or some servant or agent of the company from whom he takes his instructions has the intention of defrauding the revenue."

And at 217: "Adopting the language of Atkin J quoted above, we think that the principal is liable in any case in which his servant or agent in the course of his employment 'commits the default provided for in the statute in the state of mind provided for by the statute. Once it is decided that this is one of those cases where a principal may be held liable criminally for the act of his servant, there is no difficulty in holding that a corporation may be the principal. No mens rea being necessary to make the principal liable, a corporation is in exactly the same position as a principal who is not a corporation.' If the principal is liable for the fraud of the agent actually committing the offence, he is no less liable for the fraud of some superior servant or agent by whose direction the offence is committed, but we see no reason for extending the responsibility of the principal to a case in which it is sought to make the principal responsible for the state of mind or the state of knowledge of some other servant or agent not concerned in the doing of the act."

153 See also Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 where Gleeson CJ (with whom Mahoney JA and Campbell J agreed) said, at 718-719: "As a rule the common law refused to impose criminal responsibility on a person, as a principal, for the misdeeds of others. The development and extension of principles imposing vicarious liability in the nineteenth and twentieth centuries reflect, to some extent, difficulties encountered in law enforcement. Principles were abstracted from developments in the law of tort, and this was done most readily when the offences could be characterised as regulatory in substance although criminal in form. Such offences were sometimes characterised as 'public welfare offences'. Laws relating to fair-trading, consumer protection, and safeguarding the environment provide examples. Questions of statutory construction commonly require consideration in this context. The ultimate issue in the present case is whether or not the legislature has, expressly or by necessary implication, created a criminal offence for which one can be found vicariously responsible. Whatever may be the outer limits of the principles attracting the imposition of vicarious liability it is necessary that the relevant statutory offence be of such a nature that it is capable of commission vicariously. The operative verb "to pollute", as defined in s 5, is sufficiently broad to attract vicarious criminal liability, especially having regard to the analogous circumstances where similarly broad language has been used to prohibit other forms of public nuisance or to promote analogous public welfare legislation …". (Footnotes omitted)

See also Director-General of The Department Of Land And Water Conservation v Greentree & Anor [2003] NSWCCA 31; (2003) 140 A Crim R 25 at [81]-[83] per Sheller JA, Levine J and Smart AJ. 154 Assault is not an offence of strict or absolute liability. Furthermore, there is nothing in ss 59 or 61 of the Crimes Act that indicates that the requisite mens rea for the establishment of those offences can be derived vicariously from a servant or agent of a corporation. It follows that the defendant in this case could not be vicariously criminally liable for an assault committed by Mr Bingle in the course of his employment. 155 The issue whether the defendant was criminally liable for assault because Mr Bingle was its directing mind and physical embodiment was not raised in the pleadings, nor was it dealt with in her Honour's reasons. It was, however, the subject of the parties' written submissions and in my view it must be considered in this appeal. It is an obvious issue and it is of fundamental importance. 156 It was common ground that Mr Bingle was the managing director and sole employee of the defendant. He referred in evidence to the defendant as "my company". On the recognised tests, Mr Bingle was the directing mind and embodiment of the defendant. In view of this conclusion it is not necessary to deal with the submission in the plaintiff's supplementary written submissions, filed after oral argument on appeal had concluded, that the trial was conducted on the basis that a company could be liable for the offence of assault.

157 Once it is accepted that Mr Bingle was the directing mind and embodiment of the defendant, his conduct and his state of mind were capable of being attributed to the defendant, provided of course that his relevant acts were performed on the defendant's behalf. I have mentioned that the defendant admitted in the pleadings that it was vicariously liable for the acts of Mr Bringle on the morning in question. I think inherent in that admission are the further admissions that Mr Bingle's acts were performed in the interests of the defendant, were its acts, and Mr Bingle performed those acts when acting as the directing mind and embodiment of the defendant. 158 Accordingly I would accept that the primary judge correctly attributed Mr Bingle's conduct and state of mind during each of the three episodes on 23 June 2003 to the defendant. That being so, it is unnecessary for me to deal with s 10(1) of the Criminal Procedure Act (NSW) to which Allsop P refers. 159 During argument on appeal, there was some discussion as to the meaning of s 54(5). For the sake of convenience I repeat that this section provides: "This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned."

160 Once it is accepted that her Honour correctly attributed Mr Bingle's conduct and state of mind on 23 June 2003 to the defendant, it is unnecessary to consider the meaning and effect of s 54(5). The situation is that the defendant was capable of being found guilty of the offence of assault by reason of the fact that Mr Bingle's acts were its acts.

Section 52 161 Section 52 of the Civil Liability Act relevantly provides: "52 No civil liability for acts in self-defence (1) A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding: (a) was unlawful, or (b) would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct.

(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them. (3) … ".

162 In my view, the onus is on the defendant to prove absence of liability on the grounds of self-defence (on his or her part) as set out in s 52. I come to this conclusion for similar reasons as those I gave when expressing the view, in relation to s 54, that the onus lies on a defendant to prove that, because his or her acts constitute self-defence, the plaintiff cannot rely on s 54(2). I appreciate that s 52(1) provides for the circumstances under which a "person does not incur a liability", whereas s 54(1) provides for circumstances under which a "court is not to award damages in respect of liability". In my view, however, this difference does not outweigh the other considerations to which I referred when dealing with the onus of proof applicable in regard to s 54. 163 The difficulties that arise in regard to the judge's findings in connection with the elements of self-defence in relation to the defendant's reliance on s 54 apply equally in regard to the defendant's case based on s 52.

Section 53 164 Section 53 relevantly provides: "(1) If section 52 would operate to prevent a person incurring a liability to which this Part applies in respect of any conduct but for the fact that the conduct was not a reasonable response in the circumstances as he or she perceived them, a court is nevertheless not to award damages against the person in respect of the conduct unless the court is satisfied that: (a) the circumstances of the case are exceptional, and (b) in the circumstances of the case, a failure to award damages would be harsh and unjust. (2) If the court determines to award damages on the basis of subsection (1), the following limitations apply to that award: (a) Part 2 (with the exception of Division 3 of that Part) applies with respect to the award of damages despite section 3B (1) (a), and (b) no damages may be awarded for non-economic loss. 165 The defendant did not plead s 53, but her Honour obviously had it in mind when she concluded (at [56]), "the evidence persuades me that the circumstances of Mr Brilley's case are exceptional and that this Court's failing to award him damages would be harsh and unjust". 166 Her Honour made no findings as to the particular circumstances of the plaintiff's case which led her to this conclusion, she did not state the grounds on which she considered the circumstances were exceptional and she neither identified the evidence nor explained the grounds which led her to the conclusion that a failure to award the plaintiff damages would be harsh and unjust. Conclusion

(a) There are serious problems with certain of the primary judge's factual findings. I have set out the factual findings concerned and the difficulties with them in the section headed "Difficulties with the primary judge's factual findings".

(b) The judge did not adequately engage with the defendant's reliance on s54 and the contention that Mr Bingle acted in self-defence. I have set out the problems with her Honour's findings in this respect in the section headed "The primary judge's treatment of s 54". I have explained that similar problems arise in connection with her Honour's findings in regard to the defendant's defence based on s 52.

(c) I have referred to the absence of relevant findings concerning her Honour's treatment of the issues raised by s 53.

168 In my opinion, the problems I have identified with her Honour's factual findings are so material that they cannot stand. 169 Further, her Honour's omission to engage with the case presented by the defendant has worked a miscarriage of justice, has produced a mistrial and is reviewable on appeal (to paraphrase Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728; see also Whalan v Kogarah Municipal Council (2007) NSWCA 5 at [40]). 170 Senior Counsel for both parties requested this Court (in the event of the appeal succeeding) to attempt to arrive at a final result itself. After giving these submissions serious consideration, I regret that I do not think that justice could be done without full and clear factual findings by a trial court, including, amongst other things, findings relating to whether Mr Bingle acted in self-defence in regard to each of the three episodes in question (bearing in mind all the elements involved). 171 I have mentioned that there was an issue between the parties as to whether the defendant had admitted in its defence that it was vicariously liable for the acts of Mr Bingle. I have held in favour of the plaintiff on this issue by reference to the words used in the pleadings. It may well be, however, as I think Mr Deakin implied, that the defendant did not subjectively intend to make that admission on the basis of the plaintiff's version. It is possible that the defendant might wish to apply to withdraw that admission in relation at least to the third episode and, perhaps, in regard to the second. This would be a matter for the judge hearing such an application, were one to be made.

172 I propose that the following orders be made: (a) The appeal is upheld;

(b) The judgment and orders of O'Toole DCJ are set aside; (c) The matter is remitted to the District Court for rehearing;

(d) The plaintiff to pay the defendant's costs of the appeal; (e) The plaintiff to have a certificate under the Suitors Fund Act if otherwise entitled;

(f) The costs of the trial to be determined by the judge hearing the retrial.

16/09/2008 - Paragraph 29 at the end of the sentence has been changed from "see [27] above" to read "see [24] above". - Paragraph(s) 29

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