Supreme Court of the ACT|2015-08-31|Before: Murrell CJ

R v Freeman-Quay (No 1) [2015] ACTSC 262 (31 August 2015)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Not guilty of recklessly inflicting grievous bodily harm, but guilty of causing grievous bodily harm.

CRIMINAL LAW - Judge alone trial - particular offences - offences against the person - recklessly inflict grievous bodily harm - causing grievous bodily harm - common assault - self defence - intoxication

Byrne v The Queen [2014] ACTCA 31

Dal Cortivo v The Queen [2010] ACTCA 14

Gibbs v Willis [2013] ACTSC 26

JA v Goldsmith [2004] ACTSC 79

R v McDougall [2011] ACTSC 51

R v Shevlin [2013] ACTSC 88

SCC 5 of 2014; SCC 51 of 2015

1. The accused pleaded not guilty to the charge that on 21 September 2013 he recklessly inflicted grievous bodily harm on Matthew Pridam (the complainant), contrary to s 20 of the Crimes Act 1900 (ACT) (Crimes Act). Pursuant to s 49 the Crimes Act, the accused was charged with the alternative statutory offence of causing grievous bodily harm contrary to s 25 of the Crimes Act.

2. The accused pleaded guilty to the associated offence that, on 21 September 2013, he assaulted Ray Reynolds, occasioning him actual bodily harm, contrary to s 24 of the Crimes Act.

3. A charge that the accused assaulted Ronnie Burt contrary to s 26 of the Crimes Act was transferred to the Supreme Court, to be dealt with at the same time as the defended charge of recklessly inflict grievous bodily harm on the complainant.

4. In accordance with s 68B of the Supreme Court Act 1933 (ACT), the accused elected to be tried by a judge alone on the charge that he recklessly inflicted grievous bodily harm on the complainant. The charge of common assault was heard at the same time.

5. In summary, the prosecution alleged that, in the early hours of Saturday, 21 September 2013, the accused and two friends (Tyler Stevens and Alexander Bower) were in the Civic area of Canberra City. They encountered another group comprising the complainant and five friends (Ray Reynolds, Jessica McCallion, Ronnie Burt, Abby Pratt and Samuel Thomson). The complainant spoke to the accused. Mr Burt intervened. The accused walked up behind Mr Burt, seized the back of his "hoodie" and pulled him backwards. There was a brief "stand-off" between the two groups. The complainant attempted to head-butt Mr Stevens. There was a short scuffle. The accused punched the complainant, who fell to the ground. The accused then punched Mr Reynolds in the face, causing soft tissue injury. The accused left with his friends. The complainant suffered severe brain injury, which was caused by the impact of his head on the concrete pavement, the punch, or both the impact and the punch.

6. I set out the principles of law that I apply and the findings of fact that I make for the purpose of arriving at a verdict.

7. The prosecution must prove the guilt of the accused beyond reasonable doubt. The accused is presumed to be not guilty. Suspicion must play no part in my function as the judge of the facts. As long as I have a reasonable doubt about the guilt of the accused, I must return a verdict of not guilty.

8. The prosecution need not prove the truth of each fact that is asserted in the prosecution case. Rather, the prosecution must prove each legal element of the charge (and any fact that is essential to establishing a legal element) beyond reasonable doubt.

9. In making findings of fact, I must rely upon the evidence, i.e. the evidence given by the witnesses and that contained in the exhibits. I must apply my common sense.

10. As a matter of practical reality, in this trial I must be satisfied beyond reasonable doubt that:

(a) The punch that caused the complainant to fall was delivered by the accused. I must dismiss the reasonable possibility that it was delivered by Mr Stevens.

(b) The accused did not deliver the punch in defence of Mr Stevens.

(c) When the accused delivered the punch, he was reckless about whether it would cause grievous bodily harm to the complainant. In considering this matter, I must take into account the fact that the accused was intoxicated.

Elements of the Offence of Recklessly Inflicting Grievous Bodily Harm

11. In relation to a charge of recklessly inflicting grievous bodily harm, the prosecution must establish beyond reasonable doubt the following four legal elements:

(a) The accused engaged in the relevant conduct (in this case, the accused delivered the punch that caused the complainant to fall).

(b) The accused intended (meant) to engage in that conduct.

(c) The conduct caused grievous bodily harm to the complainant.

(d) The accused was reckless about the infliction of grievous bodily harm on the complainant (taking into account the fact that he was intoxicated, the accused appreciated the possibility that his punch would cause grievous bodily harm to the complainant, but he carried on anyway).

12. The prosecution case on the issues of whether it was the accused who delivered the punch that caused the complainant to fall and whether that punch (directly or indirectly) caused the complainant to suffer severe brain injury turns on what may be characterised as circumstantial evidence.

13. Evidence may be either direct evidence or circumstantial evidence. Circumstantial evidence is evidence of a fact that, by itself, may not establish an offence, but which is a factual circumstance that may make it more likely that the offence occurred. In a circumstantial evidence case, the prosecution argues that, when taken as a whole, the established circumstances show beyond reasonable doubt that the accused committed the crime. In such a case, the tribunal of fact cannot return a verdict of guilty unless there is no rational explanation for the established circumstances other than that the accused is guilty.

14. In a circumstantial evidence case, the tribunal of fact must first determine the circumstances that are established by reliable evidence. The tribunal must then consider the established circumstances as a whole and decide whether, having regard to all the established circumstances and any direct evidence, the only available rational inference is that the accused is guilty.

15. In this case, there was some direct evidence about the identity of the person who delivered the relevant punch. Ms Pratt gave evidence that she saw the assailant strike the blow and, on the basis of other evidence, it may be inferred that the assailant whom she identified was the accused. For the reasons stated below, her evidence alone is an inadequate foundation to find beyond reasonable doubt that it was the accused who delivered the punch that caused the complainant to fall to the ground and strike his head. However, it is material evidence to which I attach some weight.

16. The accused did not give evidence. The onus is on the prosecution to prove its case. I draw no adverse inference from the decision of the accused to exercise his right to silence.

Admissions under s 184 of the Evidence Act 2011 (ACT)

17. Under s 184 of the Evidence Act 2011 (ACT), the accused made admissions of fact to the following effect:

(a) The incident on 21 September 2013 resulted in severe traumatic brain injury to the complainant, which amounts to grievous bodily harm.

(b) The accused was present at the incident and is the man wearing a white T-shirt in the CCTV footage.

18. Insofar as the first admission is a concession that the legal requirement of grievous bodily harm is satisfied, it is not an admission of fact. However, the admission that the complainant sustained a severe traumatic brain injury is a more than adequate foundation upon which to make the legal finding that he suffered grievous bodily harm.

19. The police retrieved CCTV footage from four cameras located in the vicinity of the incident. Although there is no footage that clearly depicts a punch landing on the complainant and causing him to fall, the CCTV footage is critical evidence.

20. The footage shows that the incident occurred at about 1:30am on 21 September 2013.

21. In the CCTV footage, the complainant is wearing grey. Mr Reynolds is also wearing grey, but can be distinguished by his white shoes. Ms McCallion is wearing a white jacket. Mr Burt is wearing a black "hoodie" over a black shirt. Mr Thomson is wearing a black top. Ms Pratt is wearing a bright pink or red dress and white shoes. The accused is wearing a white T-shirt and jeans. Mr Stevens is wearing a blue shirt and beige pants. Mr Bower is wearing a long-sleeved white shirt and tie, and is also distinguishable because he is bald.

1:29.43am Mr Stevens is standing near a wall and using his mobile telephone.

1:30.07am The complainant and Mr Reynolds are standing near the accused. The complainant may be speaking to the accused.

1:30.18am Mr Burt shepherds the complainant away from the accused.

1:30.28am The complainant looks back towards the accused and Mr Bower, and may be speaking.

1:30.36am The accused walks away from Mr Bower, towards the complainant's group.

1:30.43am The accused grabs the back of Mr Burt's "hoodie" and pulls him backwards. There is a "tug o war" over the "hoodie" and the accused succeeds in pulling it off Mr Burt.

1:30.45am The complainant circles around the accused, next to the kerbside of the road, and is looking towards Mr Stevens. Mr Stevens walks towards the group with his hands in his pockets.

1:30.47am The complainant lunges towards the accused with his left hand extended as though to grab or strike at the head of the accused. The complainant then steps back.

1:30.50am Mr Reynolds steps between the accused and the complainant. Mr Stevens stands to the right of the accused, and between the complainant and the accused.

1:30.52am The complainant's attention is focused on Mr Stevens. The complainant circles to the right of Mr Stevens, which brings him closer to the accused.

1:30.53am The complainant draws back and then attempts to head-butt Mr Stevens. Mr Stevens does not "duck" the attempt. He moves forward towards the complainant and struggles with him. The complainant raises his arms towards Mr Stevens in a fighting stance, and moves forward towards Mr Stevens and the accused.

1:30.54am The accused draws his right hand and shoulder back, and then steps forward, bringing his right arm over Mr Stevens' left shoulder, and delivering a strong punching motion towards the complainant and Mr Reynolds (who is facing the accused). Mr Reynolds' head moves back and to his left. It is not possible to see whether the punch delivered by the accused connects with the complainant. At this stage, the group is compressed.

At the time when any impact would have occurred, one of the complainant's legs is visible. It is vertical to the ground and thereafter it falls towards the pavement without any apparent hesitation or break in the fall.

Mr Reynolds positions himself between the complainant, and the accused and Mr Stevens.

1:30.55am Mr Stevens lifts his right arm towards the complainant.

1:30.56am The accused punches Mr Reynolds with his right hand, and Mr Reynolds stumbles backwards.

1:31.00am Mr Stevens stands over the complainant, who is lying on the pavement.

Mr Reynolds places the complainant in the recovery position.

1:31.03am Ms McCallion remonstrates with Mr Stevens.

1:31.15am Ms Pratt remonstrates with the accused before Mr Bower escorts the accused from the scene.

As Mr Bower and the accused are walking down Mort Street, the accused removes his right hand from his pocket and examines it.

Mr Stevens runs to catch up with the accused and Mr Bower, and they are followed by Mr Christopher Filipe, who also runs.

23. Expert evidence was given by Dr Stone, a biomechanical engineer. Dr Stone examined the CCTV footage and compiled a graph. The graph demonstrates that, from the time when any punch by the accused would have connected with the complainant, the complainant's leg fell in a continuous and apparently uninterrupted fashion until his body impacted with the pavement.

24. The accused was intoxicated when he was arrested in the early hours of 21 September 2013. He suffers from Type 1 diabetes and his blood sugar levels were unbalanced. He was taken to hospital.

25. At 3:25pm on 21 September 2013, the accused was interviewed. He said that, between 4 - 4:30pm on 20 September 2013 and the time of the incident on 21 September 2013, he attended various licensed premises. By the time that he left the Academy Nightclub, he had consumed a large amount of alcohol. He was "pretty blind" and "it was a bit of a blur from then on". He walked to Mooseheads Bar and went inside. He does not recall whom he met inside. When he was handcuffed outside Mooseheads Bar he was probably waiting for a taxi to go home.

26. The police photographed injuries to the knuckles of both hands of the accused. The accused said that they were work injuries.

27. Ms Pratt gave evidence that, in the course of the evening, she consumed a large amount of alcohol. By the time that her group went to the Academy Nightclub, Ms Pratt was very intoxicated.

28. At 12am or 1am, the group left the Academy Nightclub. Ms Pratt was walking ahead of the group. She turned and saw Ms McCallion speaking to two men. She gathered that the men were out partying for a birthday. Ms McCallion's partner, Mr Burt, became upset that Ms McCallion was speaking to the men. This part of the incident occurred outside the area captured by the CCTV footage.

29. Ms Pratt began texting on her mobile telephone. When she looked up, she saw that there was an argument between the two groups. The complainant walked into the confrontation and it appeared to her that he was trying to neutralise the argument by making a joke. Two or three seconds later, a male struck the complainant. The complainant fell straight to the ground, audibly striking his head. She was standing about 15 metres away but she saw the punch clearly. Between the time of the punch and when the complainant's head struck the ground, Ms Pratt did not see a second person make contact with the complainant, but she was not in a position to observe everything. She could not say whether the complainant was struck by the man dressed in blue (Mr Stevens) or the man in the white T-shirt (the accused). However, she drew a sketch in which she indicated the location of the assailant. When the sketch is compared to the CCTV footage, it indicates that she identified the accused as the man who struck the complainant.

30. The accused submitted that the following considerations meant that Ms Pratt was an unreliable witness:

(a) She was heavily intoxicated at the time of the incident.

(b) She was distracted; she was looking up and down as she was texting.

(c) It was not until 11 March 2015 that Ms Pratt first recorded her recollection in a police statement.

(d) Initially, she said that she was 2 to 3 metres away when the assailant struck the complainant, but later she had to concede that she was 15 metres away.

(e) Her view of the incident was obstructed by the members of her group who were standing between her and the assailant.

(f) The manner in which she positioned people in her sketch plan differed from their location according to the CCTV footage.

(g) She was unable to describe the appearance of the assailant.

31. I accept that Ms Pratt was very intoxicated at the time of the incident, that at various times she was distracted by texting, that there was a delay of about 17 months from the incident until when Ms Pratt first recorded her recollection, and that she viewed the incident from a distance of 15 metres.

32. It is obvious from the CCTV footage that Ms Pratt would not have had an entirely unimpeded view of the incident. However, the secondary CCTV footage (looking at the scene of the incident from the approximate position of Ms Pratt) supports her assertion that she had a reasonable view. Depending upon the precise position of the members of each of the two groups at a particular time, Ms Pratt may well have seen the critical part of the incident.

33. The natural manner in which Ms Pratt gave her evidence satisfies me that she was an honest witness who was genuinely doing her best to recall the events of 21 September 2013. I accept her evidence that she saw the blow being struck. The fact that she cannot describe the assailant does not undermine that assertion; her attention would have been focused on the blow, not the appearance of the assailant.

34. Prior to giving evidence, Ms Pratt had not seen the CCTV footage. Her memory could not have become contaminated by viewing it. The accused criticised her sketch plan, saying that it did not accord with the CCTV footage. I disagree. In the sketch plan, Ms Pratt placed the group at an angle to the kerbside that differs from the orientation recorded on the CCTV footage. However, the position of individual members of the group vis-à-vis each other is accurate. The coincidence between Ms Pratt's evidence (including her sketch plan) and the footage supports my opinion that her recollection of the events was reasonably reliable.

35. While I do give weight to Ms Pratt's evidence, because of the matters raised by the accused (intoxication, distance and other matters noted at [30] above), her evidence is an inadequate foundation upon which to find beyond reasonable doubt that it was the accused who delivered the punch that caused the complainant to fall to the ground and strike his head.

36. Mr Stevens gave evidence that, on 20 September 2013, he celebrated his brother Kane's 21st birthday. Mr Stevens' friend, Mr Bower, was present at the celebrations. Between 5:30 - 6pm on 20 September and 12am on 21 September 2013, Mr Stevens consumed 10 or 15 alcoholic drinks. At about 12am, Mr Stevens and Mr Bower caught a taxi into the city, intending to meet up with Mr Stevens' brother.

37. By chance, Mr Stevens saw the accused (whom he knew) at the front of the Academy Nightclub. The three men decided to attend another club together.

38. Mr Stevens recalled standing next to a wall, possibly using his mobile telephone. He looked up to observe an argument. He walked quickly to join his friends. Someone "walked around the back of the pack" and tried to head-butt him. He had not previously seen that person and had no idea of the person's identity, or why the person might wish to attack him. He managed to "duck out of the way". Mr Stevens said that his recollection was poor because he was intoxicated.

39. When shown the CCTV footage in cross-examination, Mr Stevens conceded that he had engaged physically with the person who had tried to head-butt him, but said that his actions were in self defence.

40. Mr Stevens recalled that the argument ceased and he walked away with his friends. As they were walking away and towards Mooseheads Bar, he heard a thump. He looked back and saw someone on the ground. He also heard a woman call his name, "Tyler". She may have asked whether he was Kane's brother. When he stopped and turned back, someone said "Guys, just leave it."

41. Mr Stevens was an unreliable witness and I place no weight on his evidence. Mr Stevens did not concede any physical contact with the complainant or the complainant's group until he was confronted with the CCTV footage. Yet, on an earlier occasion, Mr Stevens had told Mr Bower that he pushed the complainant (see [48] below). In evidence, Mr Stevens said that he "ducked out of the way" when there was an attempt to head-butt him. The CCTV footage does not depict a "ducking"; it shows Mr Stevens struggling with the complainant. I do not accept that, despite a reasonable recall of the events leading up to the incident, Mr Stevens had almost no recollection of the critical part of the incident. The CCTV evidence shows that he was immediately adjacent to the complainant when the complainant fell to the ground. Members of the complainant's group (Ms McCallion and Mr Burt) subsequently remonstrated with him, and he ran from the scene.

42. One cannot know the reason why Mr Stevens sought to distance himself and his group from any physical contact with the complainant and his group. He may have been attempting to protect himself, or he may have been attempting to protect the accused.

43. Mr Filipe said that he commenced drinking alcohol at about 4:30pm on 20 September 2013. He was intoxicated at the time of the incident. He was in front of the Academy Nightclub when he "bumped into" Mr Stevens and Mr Bower, whom he knew. He agreed to join them. He went back into the Academy Nightclub to retrieve his coat and farewell his drinking companions. When he returned to the pavement outside the Nightclub, he saw his friends further down the street. He saw the complainant lying on the ground.

44. When Mr Filipe joined his friends and enquired about what had happened, one of them said that the complainant had tried to head-butt one of their group and a member of their group had hit the complainant. Mr Filipe said that he could not recall whether the identity of the alleged assailant was disclosed or, if it was disclosed, the identity of the alleged assailant.

45. Mr Bower said that he attended the birthday party for Mr Stevens' younger brother and then travelled with Mr Stevens into the Civic area. He and Mr Stevens were dropped near the Academy Nightclub. They met up with the accused, who was a friend of Mr Stevens. They also met Mr Filipe. Mr Filipe was not present at the time of the incident as he had gone inside the Academy Nightclub.

46. Mr Bower recalled walking with the accused. Another group walked past them and a member of that group insulted the accused by suggesting that he looked like a member of a "boy band". After a brief discussion between Mr Bower and the accused regarding the insult, the accused approached the group, seemingly to find out why the comment had been made.

47. There was an altercation with the other group. Mr Stevens arrived at the scene of the altercation from Mr Bower's right side, i.e. from the direction of the Academy Nightclub. The two groups engaged in a brief fight (occupying perhaps 20 to 30 seconds), during which punches were thrown. Mr Bower cannot say who threw punches. He does vividly recall that, during the altercation and before the complainant struck the ground, Mr Stevens called out "He tried to head-butt me".

48. After Mr Bower had made his police statement, Mr Stevens informed Mr Bower that he had been trying to push the complainant away and he did not know how the complainant had come to be on the ground.

49. Mr Reynolds gave evidence that, from about 4:30pm on 20 September 2013, he was drinking with the other members of his group (except for the complainant) at the home of Mr Burt and Ms McCallion. At about 7:30 - 8pm, the complainant joined the group.

50. About an hour later, the group caught a maxi taxi into the Civic area, arriving at about 10pm. They went into the Academy Nightclub, where they remained for about half an hour. By that stage, Mr Reynolds had consumed about eight or nine drinks over the period since about 4:30pm (inferentially, he was not heavily intoxicated). Mr Reynolds left the Academy Nightclub with Mr Burt, Ms McCallion and Ms Pratt. Realising that the complainant and Mr Thompson were still drinking inside, he returned to the Academy Nightclub.

51. After the three men left the Academy Nightclub, the complainant fell behind Mr Reynolds and Mr Thompson. Mr Reynolds looked back and saw that the complainant was "having words" with the accused's group of four or five men. The complainant then rejoined Mr Reynolds and Mr Thompson (or Mr Burt). Someone in the complainant's group yelled out to the accused's group. The accused grabbed Mr Burt's jumper and reefed Mr Burt backwards.

52. The two groups confronted each other in a "standoff". "Out of nowhere" the complainant joined the confrontation, from Mr Reynolds' left side. Mr Reynolds did not see the punch that impacted with the complainant, but he believed that the complainant must have been punched because he ended up on the ground. As he landed, his head made a sound "like an egg breaking".

53. Mr Reynolds prepared a sketch plan that depicted his group facing the other group.

54. The man that Mr Reynolds believed had struck the complainant (the accused) then hit Mr Reynolds in the face and Mr Reynolds stumbled backwards. Later that night, he realised that he had a large black bruise and swelling around his left eye. The injuries remained obvious for about three weeks.

55. As Mr Reynolds had first aid qualifications, he immediately assisted the complainant by placing him in the recovery position. The complainant appeared to lapse in and out of consciousness; his eyes were rolling in his head, he was incoherent and he was attempting to stand up but was unstable.

56. After the complainant was taken to hospital by ambulance, Mr Reynolds and other members of the group returned to the Burt/McCallion house. The police arrived and took statements.

57. In my assessment, Mr Reynolds was a reliable witness. Compared to other witnesses, he was relatively sober on the night of the incident. He provided a police statement very soon after the events and it was not suggested that his evidence differed from the version provided in the statement. His evidence was consistent with the CCTV footage.

58. In relation to the contentious issues, as stated above, I place some weight on the direct evidence of Ms Pratt to the effect that she saw the accused strike the complainant.

59. In addition, uncontested evidence establishes the following circumstances:

(a) Unlike his companions Mr Bower and Mr Stevens, the accused had a motive to behave aggressively towards members of the complainant's group. There was tension between the complainant's group and the accused, rather than between the complainant's group and Mr Bower or Mr Stevens, or all three members of the accused's group. The cause of the tension was that the accused had spoken to Mr Burt's girlfriend, Ms McCallion (evidence of Ms Pratt) (see [28] above) and/or because a member of the complainant's group had insulted the accused by likening him to a member of a "boy band" (see [46] above). At about 1:30.18am (or earlier), the complainant spoke to the accused. I infer that the exchange was problematic because it led to Mr Burt shepherding the complainant away from the accused (see [22] above).

(b) Immediately before and immediately after the blow that caused the complainant to fall to the ground, the accused was behaving aggressively. At 1:30.43am, he aggressively grabbed Mr Burt's "hoodie" and dragged it from him. After the complainant was struck, the accused punched Mr Reynolds in the face.

(c) Immediately prior to the incident that caused injury to the complainant, neither Mr Bower nor Mr Stevens was behaving aggressively. At no stage did Mr Bower participate in a physical dispute. Mr Stevens was not involved in the initial exchanges between the accused and the complainant's group. Prior to the "stand-off" he was some distance away, utilising his mobile telephone. When Mr Stevens approached the "stand-off" between the two groups, his manner was not aggressive; his hands were in his pockets.

(d) The reason that Mr Stevens began to scuffle with the complainant was that the complainant had attempted to head-butt him. The CCTV footage shows that Mr Stevens tried to physically restrain/wrestle with the complainant. He was leaning into the complainant and he was not physically in a favourable position from which to strike the complainant with a forceful blow, even if he had been motivated to do so.

(e) The complainant drew his right arm and shoulder back and then stepped forward, delivering a powerful punching motion towards the complainant and Mr Reynolds. Although the CCTV footage did not capture the blow landing on the complainant, from the instant when any such blow would have landed, the complainant's body fell in an uninterrupted motion towards the pavement (CCTV footage and evidence of Dr Stone). The uninterrupted manner in which the complainant fell to the pavement suggests that the fall was caused by a forceful blow.

60. When considered together with the evidence of Ms Pratt, these circumstances establish that the only rational explanation for the complainant's fall is that it was caused by the forceful punch delivered by the accused.

Offence of Recklessly Inflicting Grievous Bodily Harm

62. For the reasons stated above, I am satisfied beyond reasonable doubt that the accused engaged in the relevant conduct; he delivered the punch that caused the complainant to fall to the ground.

The accused intended to engage in that conduct

63. I am satisfied beyond reasonable doubt that the accused intended to engage in the conduct of punching. The physical action of drawing his body and arm back and then advancing with a powerful punching motion was intentional conduct.

The conduct resulted in grievous bodily harm to the complainant

64. Grievous bodily harm means really serious physical injury. The injury does not have to be life-threatening or permanent.

65. Pursuant to s 184 of the Evidence Act, the accused admitted that the complainant suffered a severe brain injury. There was no dispute that such an injury constitutes grievous bodily harm. I am satisfied beyond reasonable doubt that the complainant did suffer grievous bodily harm.

66. The harm was occasioned when, as a result of a powerful punch delivered by the accused, the complainant fell in an uninterrupted fashion to the pavement, where his head struck the hard surface with a sound "like an egg breaking". The evidence does not establish that the punch itself caused grievous bodily harm but, if the severe brain injury was not caused directly by the punch, it was certainly caused indirectly when the complainant's head struck the pavement. By that means, the injury was "caused" by the conduct of the accused.

The accused was reckless in relation to the infliction of grievous bodily harm on the complainant

67. The impact of self induced intoxication is to be considered when deciding whether the accused was reckless in relation to the possibility of causing grievous bodily harm to the complainant. Self-induced intoxication is to be disregarded when deciding whether a fault element of basic intent exists: s 31 of the Criminal Code 2002 (ACT) (Criminal Code). However, the crime of causing grievous bodily harm is one of specific intent; the relevant intent relates to the outcome (grievous bodily harm) not to the causative conduct (in this case, the conduct of punching): Blackwell v The Queen (2011) 81 NSWLR119; R v Shevlin [2013] ACTSC 88; Byrne v The Queen [2014] ACTCA 31.

68. A person recklessly inflicts grievous bodily harm if the person realises that their actions may cause really serious physical injury (that there is at least a possibility that they will cause really serious physical injury) but they go ahead anyway.

69. The question is whether, having regard to all the circumstances (including drunkenness), I am satisfied beyond reasonable doubt that the accused realised that there was at least a possibility that his action of punching would cause really serious physical injury to the complainant.

70. Of course, if I was satisfied both that the accused intentionally delivered a forceful punch and that the intended recipient of the punch was the complainant, then it would very likely follow that I would be satisfied beyond reasonable doubt that the accused at least realised that his actions may cause really serious physical injury to the complainant.

71. However, the evidence shows that, immediately prior to striking the complainant, the accused was facing directly towards Mr Reynolds. Immediately after striking the complainant, the accused forcefully punched Mr Reynolds. In those circumstances, I am not satisfied beyond reasonable doubt that the critical blow was intended for the complainant; it is possible that the intended recipient was Mr Reynolds and that, because the complainant came between the accused and Mr Reynolds while the complainant was struggling with Mr Stevens, the accused struck the complainant rather than the intended target, Mr Reynolds. If so, the accused may not have adverted to the possibility that his conduct would cause grievous bodily harm to the complainant.

72. This element is not established beyond reasonable doubt.

73. Counsel for the accused submitted that the evidence raised the possibility that the accused was acting in defence of Mr Stevens.

74. Mr Stevens did not give evidence that he was involved in a physical altercation with the complainant. According to his evidence, he had successfully "ducked" a threatened head-butt. He could recall no other physical exchange. However the CCTV footage shows a brief struggle between Mr Stevens and the complainant, which ended when the complainant was punched by the accused.

75. Once evidence discloses the possibility that an act was done in self defence, the prosecution must exclude self defence by proving beyond reasonable doubt that the act was not done in self defence.

76. In the circumstances of this case, that would entail the prosecution excluding the possibility that, when the accused struck the complainant, he was acting in defence of Mr Stevens. In order to do so, the prosecution would need to establish beyond reasonable doubt either that:

(a) Subjectively, taking into account his intoxication, the accused did not believe that it was necessary to punch the complainant in order to protect Mr Stevens, or

(b) Objectively, the conduct of the accused was not a reasonable response in the circumstances as the accused perceived them.

77. There is a debate about whether the objective test is to be considered from the perspective of a reasonable and sober person, or from the perspective of a reasonable but intoxicated person. This debate arises because s 33(3) of the Criminal Code provides that:

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.

78. The argument is that s 33(3) of the Criminal Code only applies to "defences". "Self defence" is not a "defence"; the conduct relied upon to prove an assault must be unlawful conduct, so the related question of self defence arises in the prosecution case, not the defence case.

79. The relevance of self-induced intoxication to the objective test applicable to the "defence" of self defence was referred to in Dal Cortivo v The Queen [2010] ACTCA 14; R v McDougall [2011] ACTSC 51; Gibbs v Willis [2013] ACTSC 26; R v Shevlin; JA v Goldsmith [2004] ACTSC 79. However, the matter has not been finally resolved.

80. For the purpose of deciding this case, it is not necessary to resolve the question.

81. The conduct of the accused shows that, subjectively, he was unconcerned about any threat to Mr Stevens. In the short period before he punched the complainant, the attention of the accused was on Mr Reynolds. Subsequently, the accused proceeded to punch Mr Reynolds before leaving Mr Stevens and walking away with Mr Bower. Taking into account the intoxication of the accused, I am satisfied beyond reasonable doubt that, subjectively, the accused did not believe that it was necessary to punch the complainant in order to protect Mr Stevens.

82. Objectively, even from the perspective of a very intoxicated person who was concerned about the safety of his friend, the delivery of a forceful and targeted punch to the head area was an excessive use of force. The complainant was engaged in a very brief struggle with Mr Stevens, but the complainant did not have the upper hand and there was no reason to fear significant injury to Mr Stevens. The conduct of the accused was not a reasonable response in the circumstances as the accused perceived them (regardless of the accused's state of intoxication).

Alternative Offence of Causing Grievous Bodily Harm

83. Pursuant to s 49 of the Crimes Act, if a person is tried for the offence of recklessly inflicting grievous bodily harm, contrary to s 20 of the Crimes Act and the tribunal of fact is not satisfied that the person is guilty of that offence, the tribunal may find the person guilty of the lesser offence of causing grievous bodily harm, contrary to s 25 of the Crimes Act. The elements of the offence of causing grievous bodily harm are:

(a) The accused engaged in the relevant conduct (in this case, the accused delivered the punch that caused the complainant to fall).

(b) The accused intended (meant) to engage in that conduct.

(c) The conduct was an unlawful or negligent act or omission.

(d) The conduct caused grievous bodily harm to the complainant.

84. For the reasons stated above (see [62] - [66]), I am satisfied beyond reasonable doubt of elements (a), (b) and (d).

85. As to element (c) (that the punch to the complainant was an unlawful or negligent act or omission), for the reasons stated above the punch was not rendered lawful because it was an act done in defence of Mr Stevens. Further, the striking of the complainant could not be described as an accident. Although it is possible that the accused intended to strike Mr Reynolds, it must have been obvious to him that the complainant was very close to him and Mr Reynolds and that there was a risk that his punch would connect with the complainant: see Exhibit 2, slides 9-11. I am satisfied beyond reasonable doubt that, vis-à-vis the complainant, the act of the accused was at least negligent.

86. I find the accused not guilty of the offence of recklessly inflicting grievous bodily harm on the complainant, but guilty of the offence of causing grievous bodily harm to the complainant.

(a) The accused intentionally or recklessly performed an act.

(b) The accused realised that the complainant might fear immediate and unlawful violence but performed the act anyway.

(c) The act caused the complainant to fear immediate and unlawful violence.

(d) The complainant did not consent to the act.

(e) There was no lawful excuse for the act.

88. This offence is established beyond reasonable doubt. The CCTV footage shows that the accused intentionally and aggressively grabbed at the back of Mr Burt's "hoodie" and attempted to drag it from him. I infer from the nature of the conduct that the accused realised that Mr Burt would perceive the act to be aggressive, but went ahead anyway. Mr Burt had no forewarning of the act and was in no position to consent to it. There was no lawful excuse for the act; the circumstances do not give rise to any possible lawful excuse such as self defence.

89. The charge of common assault is established beyond reasonable doubt.

90. Not guilty of recklessly inflicting grievous bodily harm on Matthew Pridham.

91. Guilty of causing grievous bodily harm to Matthew Pridham.

I certify that the preceding ninety-two [92] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.

R v Freeman-Quay

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (142 paragraphs)

R v Freeman-Quay (No 1) [2015] ACTSC 262 (31 August 2015)

Parties

Legislation Cited (2)