The eyewitness evidence
52The Crown called evidence from twelve witnesses who saw some or all of the events in the hotel carpark which culminated in the offender punching Mr Kane in the left jaw after which he collapsed, or fell to the ground. Of those witnesses, seven saw and/or heard what I am satisfied was the delivery of the fatal punch by the offender. None of them saw or heard Mr Kane receive any other punch that landed although it would appear that Mr Fathers may have attempted to do so. The forensic evidence does not establish conclusively that Mr Kane suffered any punch other than the fatal punch.
53Of the nine witnesses who saw and/or heard what I am satisfied was the delivery of the fatal punch by the offender, six were variously positioned outside the perimeter of the carpark. None knew anyone in the car park. They were alerted to what they variously described as a swearing and screaming fight involving men and women.
54Three boys aged between 14 and 16 at the time of the offence and 16 and 18 at trial were at street level near the entrance to the carpark. They were Mr Rimmer and Mr Fearn, both of whom saw the punch, and Mr Pickard-Olsen, who heard it. Three women made their observations from external balconies on neighbouring apartment blocks overlooking the carpark. They were Ms Janssen, who made her observations over 47 metres, and Ms Hamilton and Ms Oram, over a distance of 78 metres.
55The seventh witness was Ms Burger. She saw the punch and identified the offender as the person who delivered it. She was facing Mr Kane when she said the offender stepped forward and delivered the punch. She described him as coming out from behind her left shoulder, after which Mr Kane fell to the ground. She was the only witness in the carpark when the punch was delivered who identified the offender as the person who delivered it. While I regard her evidence as compelling, in particular in so far as the relative positions of Mr Kane and the offender (and Mr Fathers) at the time of the punch, I am satisfied that she must have been mistaken when she described the punch that sent the deceased to the ground - the only punch she saw land on the deceased - as being delivered to his right temple. Whilst she remained firm in that view in her evidence, she also gave unprompted evidence, that she confuses her left and right.
56The remaining two of the nine eyewitnesses who saw and/or heard the punch were also in the carpark.
57None of the others in the carpark gave evidence of seeing the deceased punched and fall to the ground, and thus none identified the puncher, or was at least prepared to say so. Mr Evans said he heard "a pretty loud noise"; Mr Wallis heard what he described as "a loud thump". Some of them saw Mr Kane in the process of falling, others saw him on the ground.
58I acknowledge the potential in every trial that depends upon the evidence of eyewitnesses for that evidence to be unreliable. In this case, some of the vantage points from which observations were made by some eyewitnesses were not optimal given the compromised lighting, the distance over which the events were observed and, in the case of some witnesses, the fact that they were distracted by the actions of others. While there were understandable differences in their evidence as to what they saw and/or heard of the events in the Hotel carpark, including what was seen and/or heard of the delivery of the punch that killed Mr Kane, I am satisfied beyond reasonable doubt having regard to all the evidence, and consistent with the jury verdict, that it was the offender's punch to the deceased left jaw that caused him to immediately collapse or drop to the ground, and that the punch was both unprovoked and gratuitous.
59It is of no relevance to the issues that arise on sentence that Mr Kane may have received another punch, or punches, in the course of the confrontation with Mr Fathers. The critical finding for sentencing purposes is that I am satisfied that it was the rapidity of the release of arterial blood into the cranial cavity (most likely from the rupture or breach of the basilar artery) as Mr Kane head and neck were subject to rotational forces across the midline under the force of the punch, that is the most likely explanation for his immediate collapse and the immediate loss of consciousness from which he did not recover until death was pronounced the following afternoon.
60That said, what the evidence does establish is that at any one time during the two and a half minutes during which the fight continued in the carpark Mr Fathers, Mr Kane, Ms Burger and Ms Grainger were engaged in a pulling and a pushing and a shoving as they migrated first south then north across the carpark. Ms Burger gave evidence that she was intent on keeping Mr Kane from being drawn into a physical fight while Ms Grainger gave evidence that she was endeavouring to restrain Mr Fathers. Mr Frost and Mr Wallis were engaged in a one to one heated dialogue close by. No one was able to appoint the offender in any particular position in the circle of conflict as it moved across the carpark. He was, however, described by Mr Wallis, Mr Fathers and Ms Burger in various positions as the struggle continued. In written submissions on sentence, the Crown concedes that the offender may have been drawn into the fight. To the extent that is meant to convey that he was not the instigator, the concession is properly made. To the extent that the concession is relied upon as a mitigating factor, I do not consider that it has that effect.
61I should also make it clear that I do not accept that in delivering the fatal punch the offender was motivated to defend Mr Fathers or that there is any reasonable possibility that may have been his motivation. Suffice to say, I not only have grave doubts as to Mr Fathers' veracity in his claim to have no recall of seeing Mr Kane punched, and some doubts as to whether he was punched by Mr Kane at all (as distinct from knocked or elbowed in the course of the struggle with Mr Kane) causing him to nurse his lip, I am satisfied from the combined weight of the evidence Ms Burger and the evidence of three witnesses outside the carpark (Ms Hamilton, Mr Pickard-Olsen and Mr Fearn) that when the offender delivered the fatal punch, Mr Kane was maintaining the position (as it seems he had done for some minutes viz Mr Fathers) that he did not want to fight. Whether or not he was repeating the words verbatim, I am well satisfied that he was, if not stationary at the time he was punched, he was moving backwards as if in retreat with his hands up.
62I accept the Crown submission (again supported by the observations of the eyewitness who saw the punch that was delivered) that the punch was delivered under speed. Ms Hamilton described it as "like lightning", "in a split second"; Mr Rimmer described it as "unexpected, out of nowhere"; and Ms Janssen described it as "a straight out punch". I am also satisfied that it was received by Mr Kane without warning, affording him no opportunity to brace for its impact or to take evasive action.
63On the question of the offender's motivation, Mr Bellanto submitted that I would be satisfied that the probabilities favour the offender involving himself in the confrontation in an attempt to defuse the situation but that he suddenly "snapped" and, in the critical moment in a dynamic situation, he lost self-control and struck out with an undirected punch in the direction of Mr Kane's head. The Crown submitted that I would be satisfied beyond reasonable doubt that the offender did not, in a sudden or momentary lapse of judgment, strike out in the way suggested but, rather, that he was motivated to punish Mr Kane for what the offender believed was his gaining the upper hand in the fight with his friend, Mr Fathers, and that he aimed and delivered the punch to support his friend in an unbridled act of aggression.
64Having regard to what I am satisfied the offender said to Mr Fathers to encourage him to return to the Hotel, and his own behaviour in the smoking area and his aggressive posturing at that time, I am satisfied that the punch was directed at Mr Kane at least to put him to the ground. Whilst the offender may well have lost self-control, I am satisfied beyond reasonable doubt that in so doing he acted in a state of uncontrolled anger, unprovoked by anything Mr Kane said or did.
65Independent of the offender's motivation, whether the fatal punch was directed at Mr Kane's jaw and the force with which it was delivered are, as I have said, both significant factors to be considered in informing the objective seriousness of this offending. That question is largely informed by the direct evidence of those who saw and heard the punch being delivered, coupled with and the opinions of Dr Cala and Professor Hilton referable to the results of autopsy.
66On the issue of the degree of force the experts were in substantial agreement. Whilst neither could state with any certainty how much force was actually applied, in Dr Cala's view it was more than mild or a light application of force but how much more he could not say with certainty. He said "it could be moderate force or it could be a very severe force and anywhere in between". Professor Hilton said the force would be "substantial". He described the initiating cause of the haemorrhage as "a good blow".
67I also take into account the evidence of Mr Pickard-Olsen who described the noise of the punch as "a massive thump" and "bone shattering" and Mr Fearn's evidence that the offender threw "a lot of momentum into it - he kind of stepped forward and ... used his whole body weight to throw a big swing at him". Mr Fearn went on to say Mr Kane "rocketed to the ground.
68Even allowing for the different impressions witnesses to the same event may be left with, and allowing for differences in language and emphasis, I regard the evidence of the eyewitnesses who saw and/or heard the punch as consistent with the opinions of the experts. What cannot be overlooked is that the force of the punch, however it might have been described, sent Mr Kane to the ground. For sentencing purposes it is not to the point whether he fell or crumpled or collapsed, what is an irresistible finding is that the sheer velocity with which the punch was delivered resulted in rotational and shearing forces to the deceased's neck and the top of his spinal column as his head shifted across the midline causing the massive haemorrhage which resulted in his death.