R v Fountain & Tootell [2001] VSCA 200

R v Fountain & Tootell [2001] VSCA 200 - VSCA 2001 case summary — Zoe

[7]

Joseph Ryan gave evidence that in September 1998 he was working as a cook at the Golden Trout Hotel. At 10.30 p.m. he saw the complainant sitting on a stool near the pool tables, half asleep. Later he heard the complainant fall off his stool. Stewart Luckman and Gary Martin were in the bar at the time and the applicants were locking up, so they took the complainant out, picking him up and walking him to the door. He then heard Fountain calling him to come and help Tootell. He ran to the door and saw Fountain standing to the side, with Tootell and the complainant grappling on their knees on the ground. Ryan said, "One had - both had Andrew - and a handful of Andrew's hair and sort of trying to get control". Fountain was about 10 feet away, telling Ryan to help Tootell. Ryan said that at this stage it looked like a fair fight between two people. Ryan then grabbed the complainant by the leg and tried to get him off his knees on to his stomach on the ground, so that they could get some control. Ryan hit the complainant once in the back of the ribs "to try and get his hands free". Eventually, Ryan dragged the complainant's legs out from under him so that he was lying on his stomach on the ground. Ryan said the complainant was still trying to roll over and Tootell "just gave him a couple more knees and that to try and settle him down". From a half-kneeling position Tootell "dropped a couple of knees onto his side" and hit him once or twice to the back of the head and neck area. He also kicked the complainant once or twice, although this involved "not much of a kick". The complainant struggled a bit more but then said , "I've had enough, I've had enough". The complainant then appeared to be controlled. Ryan said that while he was still struggling with the complainant's legs, Fountain called for Stewart Luckman to "come outside and help" and then Ryan saw Luckman beside him. Fountain told Luckman, "Hit him with a pool cue", which Luckman did. Ryan was not sure how the pool cue came to be outside. The complainant was basically down on his stomach when Luckman struck him with the cue. Ryan said he was not completely under control at that time and Tootell was not yet sitting on him. Luckman struck him approximately four or five times before the cue broke. At that time Tootell was attempting to get the complainant's arms under control. In cross-examination Ryan agreed that once Tootell had got control of the complainant there were no blows struck by Tootell after that. Once the complainant was held down, zip ties were obtained to tie him up. The complainant was then groaning and looking as though he was in pain. Tootell and Luckman put ties on the complainant's legs and arms, which Ryan said was an appropriate measure for the protection of the group. The police arrived 10 or 15 minutes later. At the conclusion of the struggle Tootell had scratches on his face, near his eyes, and a blood nose, and a clump of his hair was also on the ground.

[14]

Evidence was given by Gary Martin, an invalid pensioner, who, in September 1998, worked part-time at the hotel as a dishwasher. During the course of the evening of 19 September 1998, he saw the complainant playing pool and getting drunk. Martin said the complainant could hardly stand up. He saw the complainant fall from his chair and when he stood up he had a scratch above his right eye. He said the two applicants went over to assist the complainant and Tootell asked him nicely to leave "and that's when all hell broke loose". He said the applicants walked the complainant to the door, but then he came back in and "grabbed June on the breasts". He later said that Fountain tried to get away from him, but the complainant followed her, grabbing and poking at her breasts. His evidence continued that the complainant went out again, but then returned holding his crotch. Right in front of Martin, the complainant went up to Andrea Dennis, Tootell's girlfriend, and asked for "a blow job". Tootell said, "That's my girlfriend". Martin then said that the complainant and Tootell went out the door and the complainant started punching at Tootell. Martin said that he saw the fight outside, and Tootell punching the complainant. Martin said, "Andrew was into him. He kicked him in the groin about 10 times into the nuts and kept punching him and then he called Joe [Ryan] out and Joe came out and started punching into him - into his head and he called Stewie [Luckman] out and said bring the pool stick with you ... and then Stewie flogged him about 20 times in the back". Martin said that Fountain was standing in the background and was enjoying every bit of it. Martin said the attack appeared to go on for a long time, that when Ryan was holding the complainant's legs, he was still struggling to get up to "have another go at Andrew". Martin said that at some stage the complainant said, "I've had enough, I don't want any more ..." and Tootell responded, "You'll have enough when I say you've had enough" and "kept at him".

[56]

The argument that the applicants were entitled to an acquittal on counts 1 and 2 ran as follows. The complainant had accepted that such little recollection that he had might have been mistaken. He could not dispute the fact that he had misconducted himself as described by the witnesses before his removal from the hotel. He could not state that he was not the initial aggressor. There was evidence that the complainant was acting as though he was on drugs and was showing great strength. He had fallen asleep on a stool, and then, when he fell from the stool, the applicants went to assist him and without incident took him outside the hotel. There was evidence that the complainant came back into the hotel, behaving in an improper and offensive manner, and was then asked to leave. Mr Holdenson placed particular reliance on evidence which was given at various points that there was a fight which no-one was "winning". The applicant Fountain yelled for help. It was dark. It was a frightening situation in which things happened quickly. The complainant "removed" a "chunk" of Tootell's hair. There was evidence at one point that Tootell was trying to defend himself and that Ryan joined in the fight in order to defend Tootell. He relied on the fact that Ryan said that he was trying to get control of the complainant and finish the fight as distinct from merely exacting revenge; that Luckman intervened with the pool cue in order to bring the fight to an end and to protect Tootell; and a variety of other pieces of evidence which he submitted tended to support the view that the complainant had continued to fight and, if not restrained, might have created havoc and endangered others. He submitted that there was evidence which supported the view that the applicants did not use excessive force, and that the complainant had been tied up in order to preserve the safety of others present. In other words, he submitted that on all the evidence the prosecution could not establish that what occurred outside the hotel, subsequent to the removal of the complainant from inside the hotel until the police arrived, was not unreasonable.

At a glance

Court

Decision date

Before

Source

Judgment (77 paragraphs)

Parties