R v Byrne [2013] ACTSC 246

Supreme Court of the ACT|2013-11-27|Before: Murrell CJ

1. The accused is guilty of the offence of recklessly inflicting grievous bodily harm on Timothy Gerald McCarthy.

1. At about 5:30 am on Sunday 24 July 2011, outside the "Quick and Go" convenience store on the corner of Alinga Street and Northbourne Avenue, Canberra City, the accused punched Timothy Gerald McCarthy (the complainant) once. The complainant fell backwards and struck his head on the concrete paving. The accused was charged with recklessly inflicting grievous bodily harm.

2. On 18 June 2012, the accused elected in writing to be tried by a judge alone.

3. An offence of recklessly inflicting grievous bodily harm is a contravention of s 20 of the Crimes Act 1900 (ACT). It is not an "excluded offence" within the meaning of s 68B (4) of the Supreme Court Act 1933 (ACT). Section 25 of the Crimes Act 1900 (ACT) creates the alternative statutory offence of causing grievous bodily harm.

4. The prosecution has the task of proving the guilt of the accused beyond reasonable doubt. If I am left with a reasonable doubt about the guilt of the accused, I must return a verdict of not guilty.

5. Suspicion must play no part in my function as the judge of the facts. The facts are to be determined on the basis of the evidence, that is, the evidence given by the witnesses and that contained in the exhibits. I must apply my common sense.

6. As a matter of practical reality, in this trial I must be satisfied beyond reasonable doubt on the basis of the evidence that, when the accused punched the complainant:

(1) The accused realised the possibility that the punch may cause really serious injury to the complainant, and

(2) He was not acting in self defence.

8. At the time of the alleged offence, the accused was 18 years old and the complainant was 40 years old.

9. On Saturday 23 July 2011, the complainant and a flatmate, Mr O'Sullivan, went to the Canberra Civic area to socialise. The men attended two Irish pubs, where the complainant consumed alcohol. At about 11:30 pm, when Mr O'Sullivan last saw the complainant, he was in good spirits and did not appear to be unduly intoxicated. However, by 5:30 am the complainant was well under the influence of alcohol.

10. Before midnight on 23 July, the accused went to the Academy Nightclub in the Civic area. A photograph depicts him outside the Nightclub in the company of four men, one of whom is Leigh Costa (Exhibit 7). His movements between midnight and 5 am are unknown. Just after 5 am, the accused was milling about with others outside Mooseheads Bar in London Circuit, near the corner of Northbourne Avenue in Civic.

11. The accused left the area outside Mooseheads Bar and walked north along Northbourne Avenue to the corner of Alinga Street, where a "Quick and Go" convenience store was located. He was in the company of Leigh Costa, Danny Verbach, Jack Pearce, Wayne Clarke and Aisea Gibbs-Manuata. The group stood outside the convenience store. The complainant approached the group.

12. CCTV footage taken from within the convenience store shows that the complainant hugged someone and that he then gave someone a second hug. It is unclear from the footage whether the recipient of each hug was the same person (the accused gave evidence that Leigh Costa was the recipient of both hugs and Mr Gibbs-Manuata said that he saw Mr Costa receive one hug). The CCTV footage shows that the accused reached out to touch the complainant on the shoulder. The accused then reached out a second time to touch the complainant on the shoulder. The complainant turned towards the accused and took approximately two steps towards him before stopping about half a metre away. The complainant put his left arm around the shoulder of the accused and hugged him briefly. There was a verbal exchange between the two men, lasting 15 to 20 seconds. The accused then took two steps backwards. The complainant's right arm was by his side (his left arm is not visible in the CCTV footage). The accused moved forward decisively, quickly raising his right arm to punch the complainant once in the right eye area. Immediately, without bracing or resisting, the complainant fell backwards. His head struck the concrete paving. The accused walked away in a westerly direction.

13. At that time, several security guards were leaving work at the Meche Nightclub. One of the guards, Mr Vakasiuola, heard a "big thump". His attention was drawn to the area outside the convenience store, about 10 - 20 metres away. He saw the accused standing about one metre from the complainant, who was lying on the ground. The complainant appeared to be unconscious. The accused was walking backwards, saying "It's my fault, it's my fault" and "Come on, the cops are going to come, just leave him". According to another security guard, the accused said "It's my fault" while pointing to the complainant (See Annexure A - transcript of proceedings). Security guards attempted to take hold of the accused, but he broke free and ran to the grass strip in the middle of Northbourne Avenue. The accused called to four or five other men who appeared to be part of the same group "Let's go before the cops come". The accused and others then ran west along Alinga Street. Two men turned from Alinga Street into West Row, and then ran south.

14. The complainant was conveyed to Canberra Hospital. On admission, he was deeply unconscious. He was medically paralysed, intubated and ventilated. An urgent cerebral CT scan revealed a calvarial fracture (running from behind the right eye area to the back of the skull), and a basal skull fracture (running from behind the top of the nose to the area behind the eye). Dr McDowell, the treating neurosurgeon, said that the basal fracture could have been caused either by a blow to the front of the head or by the head striking the ground. There was bruising to the right eye area, which Dr McDowell considered to have been caused by the application of direct force to the periorbital area. There were two significant contusions. The swelling and lack of blood flow to the brain was life threatening. Urgent decompressive surgery was undertaken, including a bi-frontal craniectomy. Post surgery, the complainant remained intubated, ventilated and heavily sedated (and unconscious) for approximately a week. On 17 August 2011, his frontal skull was replaced. He was discharged from hospital on 2 September 2011 and his family accompanied him back to Ireland. Dr McDowell was "almost certain" that the complainant would suffer permanent cognitive impairment.

15. At 5:30 pm on 25 July 2011, police attended the residence of the accused. They knocked on the door but there was no response. At the same time, there was a telephone conversation between the accused and his brother. The accused stated that police were at the front of his residence and that he was worried about going to prison. The accused and his brother discussed whether the accused could escape police apprehension, and the accused's brother raised the possibility of the accused getting into the roof. When police entered the premises they found the accused crouched in a corner of the garage. The manhole cover to the roof of the garage had been removed. A mobile phone was sitting on the garage floor beneath the manhole.

16. The prosecution relied upon the evidence of flight from the scene and planned flight in the face of imminent arrest as evidencing a consciousness of guilt.

17. A guilty state of mind is a circumstance that can be taken into account to strengthen a prosecution case. However, a court must be careful when deciding whether an accused acted because he felt guilty about the particular offence that is under consideration: Edwards v The Queen [1993] HCA 63.

18. In this case, the conduct of the accused in running from the scene and discussing whether he should flee in the face of imminent arrest may well have been motivated by panic at the knowledge that he had caused a very serious injury to the complainant. The conduct is not informative in relation to the state of mind of the accused at the time that he punched the complainant. Consequently, I do not take it into account on that issue.

19. The accused was not obliged to give evidence. He could have relied upon his "right to silence". He chose to give evidence on oath and to subject himself to cross examination. That does not mean that his evidence was necessarily true. I have assessed his reliability in the same way that I would assess the reliability of any witness.

20. The accused called an additional witness, Mr Gibbs-Manuata.

21. The accused gave evidence that he recalled being outside the "Quick and Go" convenience store with friends. The complainant came up to his group and "harassed" Leigh Costa by giving him an unfriendly "bear hug". The complainant appeared to be drunk. He was exhibiting unfriendly "body language" and an unfriendly "attitude". Mr Costa asked the complainant to "get off" or "back off". The complainant responded in an aggressive manner. When the complainant did not "back off", the accused tapped the complainant on the head or shoulder to attract his attention, intending to ask him to leave Mr Costa alone. The complainant ignored the tap. The accused tapped him a second time on the head or shoulder. In response to the second tap, the complainant released Mr Costa and turned to face the accused. The accused said "Relax, take it easy". The complainant took a couple of steps forward, coming to within half a metre of the accused. The complainant stopped and said "I'm Irish, I'm better than you", and then "Come into the alleyway because I want to fight you". The complainant's right hand was clenched by his side. The accused took two steps back because he felt "a little bit threatened" due to the complainant's body language and demeanour. As the accused stepped back, he said "What?" or "Excuse me". The complainant again proposed a fight. The complainant's body was "braced" and the accused was fearful that the complainant would hit him. The accused struck the complainant with his fist "out of instinct" and because he thought that the complainant was about to hit him. The accused could not recall the degree of force with which he had struck the complainant. He said that he "wasn't thinking" about what would happen to the complainant.

22. Mr Gibbs-Manuata corroborated the evidence of the accused in the following significant respects. He said that he saw the complainant give Mr Costa an aggressive "bear hug" which made Mr Costa look uncomfortable. He said that he observed the complainant to take offence, either because Mr Costa had pushed him away or because the accused had tapped him on the shoulder. He said that he recalled the complainant saying to the accused in an aggressive tone "I'll fight you and I'll kill you because I'm Irish". At that point, Mr Gibbs-Manuata turned to Mr Verbach to discuss the need to obtain a taxi and leave. He then heard the complainant speaking forcefully to the accused, who "looked threatened". After that, the accused hit the complainant, and the complainant fell to the ground.

23. I find that the accused was a completely unreliable witness. When answering questions, he was defensive and he appeared to prevaricate. He said that his memory of the evening was "a little bit blurry" and that "it was a long time ago". He then gave a very detailed account about what he said had occurred outside the "Quick and Go" convenience store. In contrast, his stated memory for other events on the evening (including his general movements, the identity of his companions, and the extent to which he had consumed alcohol) was almost non-existent, even when visually prompted by CCTV footage (Exhibit 3) and a photograph taken that evening outside the Academy Nightclub (Exhibit 7).

24. No doubt the accused was somewhat intoxicated by 5:30 am on 24 July, but he must have been generally in control of his mental faculties because he was able to exercise good physical control. He moved in a normal fashion outside Mooseheads Bar, he aimed a targeted punch at the complainant, and he ran from the scene at considerable speed and for a considerable distance. Either the accused lied when he said that he could not recall the events that preceded the incident, or he lied when he said that he had a detailed recollection of the critical events. I place no weight upon the evidence of the accused.

25. I consider that Mr Gibbs-Manuata was making a reasonable effort to tell the truth. However, I find that his evidence concerning the critical events was not reliable. First, Mr Gibbs-Manuata gave evidence that, immediately before the critical interaction between the accused and complainant, he turned away and engaged in a conversation with Mr Verbach about the need to find a taxi (I make this finding despite the fact that Mr Gibbs-Manuata maintained that he would have observed any important interaction between the complainant and the accused). Second, he knew the accused "fairly well" and he discussed the incident with the accused after the event. There is a real risk that his recollection was contaminated by the accused's assertions and, possibly, by a desire (perhaps subconscious) to recall a version of events that assisted the accused. Finally, until two or three weeks ago, Mr Gibbs-Manuata had not spoken about the incident for twelve months. Two or three weeks ago, he was shown CCTV footage. The footage "triggered memories" and "firmed up" what he recalled of the night. In those circumstances, it is very probable that the CCTV footage guided Mr Gibbs-Manuata's recollection of events, and his "memory" is not truly independent. The combination of these matters causes me to place no weight on the evidence of Mr Gibbs-Manuata in relation to the critical events.

26. Consequently, when determining whether the prosecution has proved the case beyond reasonable doubt, I have disregarded the evidence called in the defence case.

The Offence of Reckless Infliction of Grievous Bodily Harm

27. In order to prove the offence, the prosecution must prove each of three legal elements beyond reasonable doubt.

28. First, the prosecution must prove that the complainant suffered grievous bodily harm. "Grievous bodily harm" means really serious bodily harm, although the harm need not be permanent or life-threatening. In this case, the complainant suffered a life-threatening injury and it is almost certain that he will suffer permanent cognitive impairment. There was no dispute that he suffered grievous bodily harm and I am satisfied beyond reasonable doubt that he did suffer such harm.

29. Second, the prosecution must prove beyond reasonable doubt that the accused inflicted the grievous bodily harm. The conduct of the accused in punching the complainant was an immediate and proximate cause of the harm, even if the principal injury was sustained when the complainant fell backwards onto the concrete paving. I am satisfied of this element beyond reasonable doubt.

30. Third, the prosecution must prove beyond reasonable doubt that the accused realised the possibility that his act of punching the complainant may cause the complainant to suffer really serious bodily injury (not merely some injury), but the accused went ahead anyway: Blackwell v The Queen [2011] NSW CCA 93 per Beazley JA at [78].

31. In the absence of direct evidence as to the accused's state of mind upon which some weight can be placed, the Court must determine this matter on the basis of the actions of the accused and the surrounding circumstances (although the determination of mental state is not usually considered to be a matter requiring a circumstantial evidence direction).

32. In this case, the following are important considerations.

The accused was somewhat intoxicated, but was generally in control of his faculties. He was capable of considering the consequences of his actions.

The accused's actions were not preceded by an immediate physical threat. Any unwelcome hugging by the complainant had ceased.(Even on the version of the accused and Mr Gibbs-Manuata, the threat to the accused consisted of a clenched fist held beside the complainant's body and a verbal threat by a highly intoxicated man who was considerably outnumbered.) There was an opportunity for reflection.

The accused took two steps back from the complainant and then moved decisively forward to deliver one punch with a closed fist to the right side of the complainant's face. Inferentially, the punch was targeted at the face. These actions by the accused demonstrate brief reflection followed by deliberate action.

The punch was delivered with significant force. It caused the complainant to fall backwards without any resistance or attempt to break the fall. The force of the punch either rendered the complainant immediately unconscious, or caused him to fall with such momentum that he had no opportunity to instinctively attempt to protect himself. The force of the punch indicates that it was intentionally powerful.

33. The inescapable inference is that, before punching the complainant, the accused reflected briefly on his actions. He realised the possibility that, by delivering a forceful punch to the complainant's face, he may cause really serious injury. It was not "an instinctive, split second reaction", as submitted by the accused.

34. When, upon the evidence, a question of self defence arises, it is for the prosecution to establish that the accused did not believe on reasonable grounds that it was necessary in self defence to do what he did: Zecevic v DPP [1987] HCA 26; (1987) 162 CLR 645 per Wilson, Dawson and Toohey JJ at 661. The determination of the issue should be approached in a practical manner, giving proper weight to the predicament of the accused at the time, which may not have permitted calm deliberation: ibid at 662 - 663.

35. Section 33 of the Criminal Code 2002 (ACT) has application. It provides that:

(1) If any part of a defence is based on actual knowledge or belief, evidence of intoxication may be considered in deciding whether the knowledge or belief exists.

...

(3) If any part of a defence is based on reasonable belief, in deciding whether the reasonable belief exists, regard must be had to the standard of a reasonable person who is not intoxicated.

36. As the first aspect of self-defence addresses the actual belief of an accused, s 33 (1) operates to make intoxication relevant to that issue.

37. In this case, taking into account intoxication, I find that the accused did not actually believe that it was necessary to act in self-defence. The accused was under the influence of alcohol, but he was well in control of his faculties. Having regard to the intoxicated condition of the complainant and the fact that the accused was in a group of six young men, the accused could not possibly have formed the belief that he needed to defend himself. Even on the accused's version (upon which I have decided to place no weight), the "threat" consisted of a verbal threat accompanied by a clenched (but not raised) right fist. I harbour no reasonable doubt about the fact that, when he decided to punch the complainant, the accused did not believe that it was necessary to act in self-defence.

38. It is not necessary to consider the issue of "reasonable grounds" and the application of s 33 (3) (which refers to "reasonable belief" rather than "reasonable grounds").

39. The accused is guilty of the offence of recklessly inflicting grievous bodily harm on Timothy Gerald McCarthy.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Chief Justice Murrell.

Solicitor for the Crown: ACT Director of Public Prosecutions

MR DRUMGOLD: Your Honour, can I just raise one thing for the record. It may assist any further issues and it's a negligible impact given your Honour's finding of rejecting both the accused's and Mr Gibbs-Manuatu's evidence. But your Honour, or at least I heard, immediately post strike the accused's evidence was he used the words, "It's my fault." And Mr Gibbs-Manuatu also used the words, "It's my fault." I just want to - my recollection of the evidence was, "It was his fault" - was the words each of them used. I say it's of negligible - - -

HER HONOUR: Okay. Now, that is interesting, actually, Mr Crown. That passage relates to the evidence of the security guards. Now, I thought that that is what they said but I may be wrong. Let me just check that.

MR HOPKINS: If I can indicate, I hold the same view in relation to the evidence as my friend. The statements were on multiple occasions, "It was his fault," pointing to the person.

HER HONOUR: All right. Let me just check that. Well, now I do not have the transcript but, according to my notes, the evidence of both security guards was that - well, the evidence of Mr Vakasiuola was that, talking about the man who ran into the middle of Northbourne Avenue, and this is Mr Vakasiuola, "He called to men let's go before the cops come." He was walking backwards saying, "It's my fault, it's my fault," and "Come on the cops are going to come. Just leave him." In other words, the accused was walking backwards and saying, "It's my fault." I thought the evidence of Mr Vakasiuola and the evidence of Mr Ahkey was when he approached the man, presumably the accused, and said, "You're not going anywhere, wait for the police," he said, "It's my fault," pointing to the male on the ground. Is that not correct?

MR HOPKINS: Your Honour, that's not correct on my understanding of the evidence or my note but - - -

HER HONOUR: My associate has the transcript. Let me just check that. I think it would be good to clarify this matter at this point.

It is really strange. I cannot find that passage in the first security guard's evidence. It must be here. Let me just go through it again.

MR DRUMGOLD: My notes indicate with regard to Mr Ahkey, your Honour.

HER HONOUR: All right. I will look at that in a moment but I have it for both of them.

MR DRUMGOLD: Mr Kepuatu(?) was, "Let's go before the cops come," I think.

HER HONOUR: Yes, I've got that but let me just find the passage here I've also noted down.

MR HOPKINS: I think there was also cross-examination where he may have agreed that he heard, "It was his fault."

HER HONOUR: All right. No, I've found it. It's on page 29 of the transcript, line 14 and 15, and it's starting at the top of the page. Okay, we'll start at the bottom of page 28. I asked Mr Vakasiuola:

"How far did you have to run to get from where you were to where this happened?---It's only like 20 minutes."

Where you were or came out to where all the security officers were?---M'mm."

So you ran over and as I understand it whether it was you or some of the other guards, you quickly tried to stop the gentleman leaving, the one that you thought had hit the guy on the ground?---Yes. Yes we tried to stop him and make him come back but he shot off.

Okay, and, in fact, he was walking backwards over the road and saying. "It was his fault, it was his fault," wasn't he?---Yes."

I see where the problem arose. Yes, as to whether the witness was saying it was his fault or whether the witness was saying, "It was his fault," indicating someone else.

HER HONOUR: Okay, I see that and I interpreted that differently. Then the next passage in the evidence of Mr Ahkey, okay, it's exactly the same. Yes, you're quite right. On page 31 at line 35, "The male was walking away and he said, 'It's his fault.'" That's a reference to - there must be an earlier reference. No, then Mr Ahkey made it quite clear that the accused indicated it was the fault of the complainant. That's correct. That's on page 31.

Okay, now, look, I misinterpreted that evidence but it frankly has got nothing to do with it, really, with my decision and I probably should place that on the record because my decision is not based on the accused's evidence at all which I found quite unreliable. Even if the accused thought that it was the complainant's fault for some reason, that doesn't really affect my decision about what actually happened. I mean, the accused may well have thought it was the complainant's fault in some obscure sort of a way. That is far from indicating that the complainant threatened him or threatened him to the extent that he had to engage in selfdefence. So I'm glad you have drawn that to my attention and it was my mistake.

MR DRUMGOLD: I think knowledge of that - the importance of that in the reasoning process is useful and I'm indebted to your Honour. I hand up the criminal record of Mr Byrne.

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