40 When cross examined, Mr Northey stated that it was his recollection that the defendant and Mr Horler were standing between the bar table and the witness box when Mr Horler was struck. Others, of course, recall that the events occurred when they were standing between the bar table and the solicitors' table. In this respect I am satisfied that Mr Northey's recollection is faulty. However, I am otherwise satisfied that his recollection is accurate, in particular, his description of the manner in which the defendant struck Mr Horler.
41 Ms Sarah Henry, the solicitor for the first defendant, also gave evidence. She did not see Mr Horler struck, although she confirms that he fell to the floor in front of her and between the bar table and the solicitors' table. She recalls the defendant speaking near the lift well, where he said words to the effect "This is only the beginning, Mr Garling and Mr Horler, you drunken has-beens."
42 The defendant gave evidence. He stated:
"Mr Horler attempted to walk past me and I must admit I am not absolutely certain what happened after that, but my best reconstruction - it is a reconstruction rather than an absolute recollection, if you know what I mean. I can remember up to here and I can remember after that. So I have to say it is a reconstruction rather than an actual recollection, right. I have two clear recollections. Standing up and berating him, saying, 'you drunken has been. You couldn't defeat an amateur like me with all your dirty tricks' and the next moment he was on the floor and I looked down at him. I said something really sarcastic: 'oh you actor, get up' or something like that and looked down at him and then I left the court.
43 He was cross examined:
Q. Did you say to him, 'There you are Mr Horler'?
A. I said something to the effect, 'Here you are' or 'There you are, Mr Horler the judgment'. I held the judgment aloft. What I was demonstrating was, because I had made many approaches to Mr Horler saying: there's no case against me, for God's sake let me out of this nightmare, there you are or here you are - I can't be certain - Mr Horler, the judgment, and I showed him the judgment and my hand was shaking in rage, yes, and I would like to think with righteous indignation, this was shaking, and that's what happened. Whether it was a hard blow or not, I can't really say. My impression at that time was he was, he had done a theatrical leap, but on recollection it is hardly likely. It is more likely the shock of having an angry person waving documents in the case, which probably did contact with the bridge of his nose, because I was shaking like this, and caused him to lose his equilibrium.
Q. There's no doubt that that judgment, in your mind, that that judgment came into contact with Mr Horler's face. Is there?
A. Nose. There's a small amount of doubt I must say. You can cause a person to lose their equilibrium by waving something in their face. I am not absolutely certain whether there was a contact. If Mr Horler states there was a contact, he is the one that would know. I would accept there was. I am not, as an independent recollection, no. I can remember waving it in his face and as he came past me whatever occurred, occurred, but no, I can't absolutely agree with what you are saying. Mr Horler moved towards me while I was berating him. His presumed intention was to get around behind me. He could have taken another way and none of this would have happened."
44 The events of concern to the court occurred on 9 June 2000. On 16 June 2000 the defendant wrote to Hidden J. That letter was in evidence before me. In the letter the defendant described the events which occurred in the courtroom as a "fracas" and sought to give an explanation for his behaviour during the proceedings. He catalogued a variety of complaints particularly directed at Mr Horler. He complained of the fact that Mr Wang was brought to the court to give evidence and said that, "This forago left an enduring legacy of dislike for Mr Horler."
45 In the letter the defendant stated his version of the events of 9 June 2000. He said:
"I will now present my perceptions of the events immediately following the judgment. After receiving a copy of the judgment I raised with you my concerns over matters relating to the determination of my costs. You mumbled something and left the bench without fixing a date for finalisation. Having had to wait an agonising seven months for you to finally provide a judgment, the prospect of the matter dragging on was quite upsetting. I turned to Mr Horler holding a copy of the judgment folded once along its length and began to berate him about his conduct of the case. I do believe the document may have connected with the tip of his nose but the amount of force involved could not have been sufficient to knock any normal person off their feet. You refer in your judgment to irascible behaviour on my part, specifically in relation to Mr Horler. If you properly consider all of the above facts my behaviour may appear to be much more understandable."
46 It is obvious that there is a conflict between the evidence of Messrs Horler, Windsor, and Northey and that of the defendant, as to the nature of any blow to Mr Horler.
47 Mr Horler says the defendant moved towards him and hit him in the face. Mr Windsor says that, as Mr Horler walked past the defendant, the latter struck Mr Horler in the face with a copy of the decision. He says that the movement by Dr Katelaris was not a flick but a sharp slap or whack, accompanied by the words, "There you are, Mr Horler". His account is entirely consistent with that of Mr Northey, who says the defendant drew his right hand back across his body, just above his left shoulder, and in one swift motion, swung it across towards Mr Horler, hitting him on the left side of his face, above the left eye.
48 The defendant says that the event was an accident. He says that he did not intend to hit Mr Horler. He claims that he was merely waving a copy of the decision in a manner intended to emphasise the strength of his displeasure, without intending to strike a blow.
49 I have no doubt that the evidence given by Messrs Horler, Windsor and Northey is the correct account of the event. I am satisfied beyond any doubt that the defendant was very angry and determined to express that anger by both verbally abusing Mr Horler and striking a blow on him with the copy of the decision. I do not accept the defendant's evidence that the blow was an accident. Although it may not have been premeditated, I am satisfied that the defendant, overcome by anger, which had been building for many months, intentionally hit Mr Horler, causing him to fall.
50 The defendant gave evidence of a debilitating medical condition and of the medication he had taken on the night of 8 June 2000. He said that he was taking Dexamethosone, Oxycodone and Codeine in various combinations for a few days before 9 June. He said the main drug was Dexamethosone and although taking a variable dose, on or around 9 June he was taking a dose of 24 milligrams, which I understand is a high dose.
51 The defendant called to give evidence Dr Champion, a consultant physician in rheumatology, musculoskeletal medical research and pain medicine. The defendant has consulted with him at regular intervals and has been treated by him with occasional hospitalisation.
52 He gave a history of a confirmed episode of gout in 1989, with other later possible but unconfirmed episodes. From an early stage the defendant showed signs of bursitis in his right elbow, which appears to have been severe on some occasions.
53 Evidence was given that, although Dr Champion may have prescribed drugs for the defendant, this was more usually done by a general practitioner or by self prescription.
54 Dr Champion indicated that a person who received a large dose of corticosteroids and who was biologically susceptible, may suffer mood and cognitive effects. Commonly there may be an exaggeration of the prevailing mood, with cognitive impairment, including lack of balance, lack of judgment, perhaps confusional state.
55 He indicated that 24 milligrams of Decadron given daily, which I infer the defendant took, is a very high corticosteroid dose for somebody who may be corticosteroid naïve, or who has not had the drug for an extended time, and could lead to mood and cognitive aberrations.
56 The doctor was asked by the defendant:
"Q. I have been accused in this court of holding up a favourable judgment and yelling angrily at a legal practitioner. In your mind, would that - and having received four days of Dexamethasone, a does of 24 milligrams, as well as some Oxycodone and some other medications as well, do you think there may have been some change in mood perception cognitive ability and judgment by the combination of those circumstances?
A. There may have been. It would be no surprise. The risk of impaired judgment would have been substantially increased by that combination of medications and the context that you mentioned."
57 He was also asked:
"Q. I'm sorry. Is it your evidence that the use of steroids of that dosage deprives a person of the ability to control an action, in other words, to make a person act involuntarily?
A. It depends very much on the context. If that person is in a context where normally some reasonable controls would ensure that reactions of anger, frustration or the like are kept within appropriate bounds, if there is normally, or in that context something of a struggle to behave appropriately, it is not surprising at all that a high dose of corticosteroid such as 24 milligrams of Dexamethasone may be sufficient to reduce that cognitive controlling balance.
Q. Is there a distinction between, as it were, lessening the controls on yourself and not, as for example to take a more common case, excessive alcohol and a person acting entirely against any will that they have, in other words, involuntarily, is there a distinction of that kind in what you've answered?
A. Well, psychosis, as is well established with corticosteroid, does indicate loss of, or partial loss of the normal controlling influences of our mind on appropriate behaviour. So as alcohol does, so it's not particularly - both acute alcohol intoxication and acute corticosteroid psychosis are organic brain syndromes with loss of these normal controls over behaviour."
58 This exchange also occurred in cross-examination of Dr Champion by Mr Lakatos:
"Q. One last matter. Accepting the parameters that we are speaking about, four days of higher dosage corticosteroids, is it possible that a person of Dr Katelaris's age and sex, relevant objective factors, could do something in a courtroom in the nature of hitting somebody?
59 There was an objection and the question was allowed:
"Q. Without knowing that he was doing so? Do you want me to repeat the question?
A. Without knowing what?
Q. That he was hitting the person?
A. He would know that he was hitting a person, I expect."
60 He was also asked:
"HIS HONOUR: Q. Doctor, can you help me, if this psychosis was induced by the large dose of the steroid, would that have the effect of someone may not know what they are doing?
A. In the extreme, in well established, well, the extreme end of psychosis, that could be the case. It is more likely, though, that there would be lack of control and lack of judgment.
HIS HONOUR: Q. Nevertheless they would know what they were doing?
A. I would have thought so, but not necessarily being able to control that reaction."
61 I am satisfied that the defendant had been taking large doses of corticosteroids and other drugs in the days immediately preceding 9 June 2000. However, I infer that this was not the first occasion on which the drugs had been taken and he was probably not corticosteroid naïve, and certainly had been taking the drugs for a number of days.
62 I accept that the taking of the drugs may have affected his mood and may also have elevated his level of anger and frustration. However, I have no doubt he knew what he was doing on the morning of 9 June, and, notwithstanding any effect from the drugs, he intended to hit Mr Horler. I am satisfied, beyond reasonable doubt, that the defendant intentionally hit Mr Horler with a folded copy of the judgment.
63 The plaintiff is, accordingly, entitled to the declaration sought in the summons.