R v Mulcahy [2010] ACTSC 98

Supreme Court of the ACT|2010-08-26

1. A verdict of guilty be entered in respect of the charge on the indictment.

1. At about 4.50pm on 2 December 2007 an incident involving the complainant, Mr Nicholas Carl Francis Gerhard, and the accused, Mr Richard James Mulcahy, occurred at the green waste area of the Mugga Lane Tip, also known as Corkhill Bros waste recycling facility.

2. The fact of the incident is not in dispute. However, what happened during the incident is in dispute. The Crown alleges that the accused, without justification, punched the complainant's face, thereby causing a laceration to the left side of his upper lip, and knocked him to the ground, thereby causing a laceration to the back of his head. The accused admits that he punched the complainant's face, causing the laceration to the lip, and knocked him to the ground, causing the laceration to the head, but claims that what he did was justified because he acted in self-defence against the actions of the complainant towards him.

3. At about 5.10pm on 2 December 2007 the accused attended at Woden Police Station and reported the incident to Constable Andrew Stuart Lockley. What the accused told Constable Lockley about the incident is contained in Constable Lockley's notebook (Exhibit F1) and recited in his statement (Exhibit F2).

4. At sometime after 5.10pm and before 6.10pm on 2 December 2007 the complainant attended at Woden Police Station with his wife to report the incident to police. He was told to go to hospital for treatment and that someone would speak to him at the hospital.

5. At 6.10pm on 2 December 2007 the complainant attended at the Canberra Hospital seeking treatment for his injuries. Details of the complainant's injuries and the treatment that he received for them are contained in the clinical notes of the Emergency Department of the hospital (Exhibit C).

6. At about 6.35pm on 2 December 2007 Constable Denis James O'Donnell, together with Constable Peter Dearing, attended at the Canberra Hospital to speak to the complainant in relation to the complainant's report of the incident to Woden Police Station. What the complainant told Constable O'Donnell about the incident is contained in Constable O'Donnell's notebook (Exhibit G1) and is recited in his statement (Exhibit G2).

7. On 13 February 2008 a summons was issued out of the ACT Magistrates Court charging the accused with having assaulted the complainant, thereby causing actual bodily harm to him, contrary to s 24 of the Crimes Act 1900 (ACT) and requiring him to appear before the court on 17 March 2008.

8. Accordingly, on 17 March 2008 the accused appeared before the Registrar of the ACT Magistrates Court in answer to the summons and, on being arraigned, he entered a plea of not guilty to the charge and the proceedings were adjourned to a later date.

9. In due course, on 22 September 2008 the accused appeared before a magistrate in the ACT Magistrates Court for a committal hearing in relation to the offence with which he had been charged. It was a paper committal hearing. He did not consent to the Magistrates Court having jurisdiction to hear the charge. He was committed to this Court for trial.

10. On 16 August 2010 the accused appeared before me in this court to stand his trial. It was to be a trial without a jury. He was represented by Mr Purnell of Senior Counsel. Mr Purnell told me that the issue in the trial was whether or not the accused had acted in self-defence.

11. The following witnesses gave evidence in the accused's trial:

12. The following documents were admitted into evidence during the trial:

(A) sketch of the area for disposing of green waste at the Mugga Lane Tip drawn by the complainant;

(B1) and (B2) photographs showing the injury to the complainant's mouth and head taken by police on 2 December 2007;

(C) clinical notes of the Emergency Department of the Canberra Hospital related to the complainant's treatment at the hospital on 2 December 2007;

(D) sketch of the green waste area at Mugga Lane Tip drawn by Mr Robert Mackey;

(E) sketch of the green waste area at Mugga Lane Tip drawn by Mr Scott Mackey;

(F1) and (F2) notes and statement of Constable Lockley;

(G1) and (G2) notes and statement of Constable O'Donnell;

(H) photograph showing the green waste area at Mugga Lane Tip taken by Mr Benyei on 2 December 2007;

(J1) and (J2) photographs showing the injury to the complainant's mouth and head taken by Mr Benyei on 2 December 2007;

(1) photographs showing bruising to the accused's left upper arm and shoulder taken by Mrs Mulcahy on 4 December 2007;

(2) notes of Dr Black related to his examination of the accused on 7 December 2007.

13. A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair trial according to law. The fundamental rules which govern a criminal trial are these.

14. The Crown bears the onus, burden or obligation, to use three interchangeable words, to prove the guilt of the accused. The Crown has asserted that the accused has committed a criminal offence, therefore the Crown must prove that the accused committed that offence. The accused does not have to prove that he did not commit that offence.

15. The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.

16. The accused is presumed by law to be innocent of the offence with which he stands charged unless and until the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty.

17. In addition to the fundamental rules which govern a criminal trial, the following rules have been developed.

18. As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the Crown and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.

19. I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence.

20. I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally.

21. I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.

22. I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, or I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.

23. The accused gave evidence on oath. He was not required to do so; he could have elected not to give evidence. By giving evidence he became a witness in his trial. His evidence is not any better or any worse than the evidence of other witnesses in his trial simply because he is the accused. His evidence falls to be considered in the same way as the evidence of the other witnesses in his trial falls to be considered. However, by giving evidence he did not assume any burden, onus or obligation to prove anything in his trial.

24. In a criminal trial the Crown must prove the essential elements of the charge beyond reasonable doubt. The Crown does not have to prove everything about which evidence has been given beyond reasonable doubt. The essential elements of the charge against the accused are:

(2) that, as a result of that assault, the complainant suffered actual bodily harm. As I have said already, the accused admits that he punched the complainant's face, an act which is an assault, and that, as a result of the punch, the complainant suffered lacerations to the upper lip and head, which injuries amounted to actual bodily harm.

25. However, as I have also said, the accused claims that what he did was justified because he acted in self-defence to the actions of the complainant towards him. The law recognises the right of a person to act in self-defence against an attack, or the threat of an attack, by another person. This right arises when the person believes that the use of force is necessary, in order to defend him or herself against an attack, or the threat of one, by another person, and what the person did in defending him or herself against that attack, or the threat of it, was a reasonable response in the prevailing circumstances as he or she perceived them to be.

26. The accused does not need to prove that he acted in self-defence; rather the Crown must prove that the accused did not act in self-defence. The Crown may prove that the accused did not act in self-defence by proving either:

(1) that the accused did not believe at the time of doing what he did that it was necessary to do what he did, in order to defend himself; or

(2) if he had such a belief that, nevertheless, what the accused did was not a reasonable response to the prevailing circumstances, as he perceived them to be.

27. As to the accused's belief and response, two things are important. As to the accused's belief, the prevailing circumstances must be considered as the accused perceived them to be. This is a subjective test. The circumstances should not be looked at with the benefit of hindsight. If the accused had the belief, or if it is reasonably possible that the accused had the belief, that he had to do what he did in his self-defence, then it does not matter that his belief may have been mistaken. As to the accused's response, what the accused did must be considered against what was done, or threatened to be done, against him. This is an objective test.

28. If the Crown proves either that the accused did not believe that his act was necessary in his self-defence, or that the accused's act was not a reasonable response to the act, or the threat of it, against him, then the Crown has proved that the accused did not act in self-defence.

29. The accused relies upon his good character and reputation. Witnesses gave evidence of the accused's good character and reputation. As I understand the submissions of the Crown prosecutor, the Crown does not dispute that the accused is a man of good character and reputation. I accept the accused to be a man of good character and reputation.

30. I must take the accused's good character and reputation into account in his favour in two ways. Firstly, I must take the accused's good character and reputation into account in his favour on the question of whether or not the Crown has proved his guilt beyond reasonable doubt. Secondly, I must take the accused's good character and reputation into account in his favour on the question of whether or not to accept what the accused has said about the Crown's allegation against him.

31. Of course, the accused's good character and reputation does not provide him with some kind of defence. People of good character and reputation do commit criminal offences. Every offender has committed a first offence and, before doing so, was a person of good character and reputation. The fact that the accused is a man of good character and reputation cannot prevail over or provide a defence to evidence of guilt if the Crown has proved beyond reasonable doubt that the accused is guilty of the offence.

32. There is a dispute between the complainant, on the one hand, and the accused, on the other hand, as to whom of them was the first to arrive in the vicinity of the tip face. The complainant said that he was sitting in the driver's seat of his car, which was stationary in a line of cars, as the drivers of the cars were waiting for a space at the tip face, when the accused's car was driven along the line of cars towards the head of it, which caused him to say, "You know, let's do this in an adult fashion, or a mature fashion". The accused said that his car, which was being driven by his wife, was stationary facing the tip face because a space was not available at the tip face, when the complainant's car arrived on his left-hand side a few seconds after his car had become stationary, and the complainant waved at him and called out to him, "What the fuck do you think you are doing, you stupid cunt? Why don't you wait your turn?" Mrs Mulcahy said that after she had stopped her car facing the tip face she became aware of the complainant's car on her left-hand side, and of the complainant in his car waving his arms and calling out, "What the F do you think you're doing, you stupid C? Wait your turn in line".

33. I really do not need to resolve this dispute between the complainant and the accused, but the very fact that the accused said that the complainant said, "Why don't you wait your turn?" and Mrs Mulcahy said that the complainant said, "Wait your turn in line" suggests to me that the complainant's car was near the tip face, with the complainant waiting for a space at the tip face, when the accused's car arrived at the tip face. Accordingly, I accept the evidence of the complainant as to this in preference to the evidence of the accused and Mrs Mulcahy.

34. There is a dispute between the complainant and the accused as to whether there was a line or queue of cars approaching the tip face when the accused's car arrived at the tip face. The complainant said that, "There was quite a line-up with four to six cars in front of me, and at least that many behind me". Mr Robert Mackey said that although the tip face was full and congested without a free space, the only car waiting to go to the tip face when he arrived was the complainant's car and he stopped his car behind the complainant's car. Mr Benyei said that, after whatever had happened between the complainant and the accused, he saw "a line of cars waiting for access to the tip face. Mr Gerhard's was the first of those cars, and then there was a line of cars behind". The accused said that when he arrived at the tip face there were no available spaces at the tip face and there were "a couple of cars waiting to jockey for positions". Mrs Mulcahy said that, "There were cars that were reversed disposing of their rubbish, and there were other cars at random waiting to get a spot".

35. Although I do not need to resolve this dispute between the complainant and the accused, the fact that the accused said that the complainant said, "Why don't you wait your turn?" and that Mrs Mulcahy said that the complainant said, "Wait your turn in line", suggests to me that there was a line of cars. The evidence of Mr Benyei confirms that there was a line of cars behind the complainant's car when he went to the aid of the complainant. I accept that there was a line of cars waiting for a space at the tip face when the accused arrived at the tip, and that Mrs Mulcahy drove her car past the line of cars to the tip face.

36. The accused's counsel said that the accused did not dispute that, after the complainant had said something to him, he left his car and went up to the complainant's car and spoke to the complainant, but that the accused disputed what the complainant said that he had said to him. The complainant said that the accused called him "A fucking fag". Mr Benyei said that, as he was unloading green waste from the back of his car he heard raised voices which included the phrase "You faggot", and he looked in the direction of the voices and saw a man wearing a white hat. This man was the accused. Mr Benyei agreed in cross-examination that the word "faggot" might have been the word "maggot". The accused said that he had said "Shut your mouth, you fucking maggot. Leave us alone" to the complainant. Mrs Mulcahy said that the accused said "Mind your own business, you F-ing maggot" to the complainant.

37. I really do not need to decide whether the accused used the word "maggot" and not the word "fag" or "faggot" because, whichever word was used, and in the circumstances in which it was used, the word was offensive and likely to cause a response from the person to whom it was made.

38. And provoke a response from the complainant it did. The complainant opened the driver's door of his car, left his car and walked towards the accused who was walking towards his car and said, "What's going on here?" which caused the accused to turn around and walk towards the complainant. The accused said that, as he was walking towards his car, he heard a voice from behind him say "What's going on? Where are you going?" which caused him to turn around and he saw the complainant leave his car and walk towards him. Mrs Mulcahy said that, after the accused had walked to the complainant's car and had spoken to the complainant, the accused walked back towards his car and the complainant got out of his car and said "You want trouble? You've f-ing found it".

39. Again I really do not need to decide what was said by the complainant to the accused but, as the complainant said that he said "What's going on here?" to the accused, and the accused said that the complainant said "What's going on? Where are you going?" I accept that the accused said "What's going on here?", rather than "What's going on? Where are you going?" or "You want trouble? You've f-ing found it".

40. The complainant said that, after he had said "What's going on here?" to the accused, the accused turned around and came back to him and said, "Go on, have a fucking go. Take me" to which he said, "Why would I?" and he put his hands up with the palms out. The complainant demonstrated in court that he held his hands upwards with his arms bent at the elbows, his hands at his shoulders, his fingers pointing upwards and his palms facing forward. The complainant said that, "And that's when I was hit. He hit me. I fell back, hit my head on a rock and was unconscious".

41. Mr Robert Mackey said that, although he was scanning for a spot at the tip face, he saw the accused walk towards the complainant's car; the complainant open his car driver's door and get out from his car; the complainant step backwards with his arms at his sides and the palms of his hands facing forward; the accused step forward; and then the accused, with his right arm extended forward, with his hand formed into a fist, standing over the body of the complainant on the ground.

42. Mr Scott Mackey said that he first saw the complainant and the accused standing together at the driver's door of the complainant's car; the accused was yelling and punctuating his words with hand gestures. Then he saw the complainant back away from the accused with his hands by his sides, and then raise his hands from his waist, so that his arms were bent at the elbows, his hands were near his shoulders, his fingers were pointing upwards and his palms were facing forward. Mr Scott Mackey demonstrated in court what the complainant had done. Mr Scott Mackey said that he saw the accused step forward and hit the complainant to the face with a closed fist, and then the complainant fall to the ground.

43. Mr Benyei said that he heard "a thud, like a noise of contact" then he got into his car and moved it from the tip face to where the complainant's car was parked.

44. The accused said that, after the complainant had called out "What's going on? Where are you going?" to him, he stopped and turned around and the complainant walked up to him and "pushed me hard in the chest", which caused him to put up his hands and say, "Don't touch me. Don't touch me" whereupon the complainant grabbed the top of his right arm at the shoulder with his left hand, and he raised his right arm, so that he thought that the complainant was going to hit him, and he hit the complainant with his right fist while the complainant was holding his right upper arm at the shoulder.

45. Mrs Mulcahy said that, after the accused had said "Mind your own business, you f-ing maggot" to the complainant, the accused turned around and walked back towards his car, when the complainant got out of his car and said, "You want trouble? You've f-ing found it" to the accused, who turned around to face the complainant; then, when they were very close together, the complainant pushed the accused "hard" to the right side of his chest using his left hand, which caused the accused to say, "Don't touch me", after which the complainant twice grabbed the top of the accused's right shoulder with his left hand and then raised his right arm with his right hand "making a fist", at which stage the accused hit the complainant on his chin with his right fist, causing the complainant to fall to the ground.

46. The Crown relies upon the evidence of the complainant, Mr Scott Mackey, whose evidence is very similar to the evidence of the complainant and corroborates the evidence of the complainant, and Mr Robert Mackey, whose evidence, although not very similar to the evidence of the complainant like the evidence of Mr Scott Mackey, confirms many respects of the complainant's evidence.

47. The accused relies upon his evidence and the evidence of Mrs Mulcahy, whose evidence is very similar to the evidence of the accused and corroborates the evidence of the accused.

48. However, the Crown prosecutor pointed out that the accused has given four versions of the incident before giving evidence about it during the trial, and that Mrs Mulcahy had given one version of the incident before giving evidence during the trial.

49. The first version given by the accused was given to Constable Lockley at 5.10pm on 2 December 2000 (see Exhibit F). Constable Lockley's notebook records:

Mulcahy stated that a male driving YDE 56C was being aggressive towards him and approached him and placed his hand on his chest. Mulcahy stated that he believed the male was going to assault him and he has feared for his safety. When the male approached him again and Mulcahy struck him on the chin. Mulcahy then walked away. The whole [time] Mulcahy was using clear verbal directions to get back and not touch him.

The defendant told me that while he was queuing up at the rubbish tip a male driving a vehicle with ACT registration YDE 56C was being aggressive towards him, he then approached and placed his hand on his chest. The defendant believed that the male was going to assault him and that he was fearful for his safety. The defendant also stated that the male approached him again so he struck him on the chin. The defendant said that he then walked away. The defendant said that the whole time he was using clear verbal directions to get back and not touch him."

I note that the accused did not tell Constable Lockley that the complainant "pushed me hard in the chest", only that the complainant "placed" his hand on his chest, or that the complainant grabbed the top of his right arm at the shoulder with his left hand, or that the complainant raised his right arm towards him. Also, I note that the accused told Constable Lockley that the complainant approached him twice, not once only. This version of the incident is inconsistent with the accused's evidence about it given during the trial.

50. The second version given by the accused was given to Mr McGowan on 4 December 2007. Mr McGowan said that the accused told him that the complainant pushed him in the right upper chest, grabbed his upper right arm and raised his arm, whereupon he punched the complainant on the chin, knocking him to the ground. This version of the incident is consistent with the accused's evidence about it. the accused. Mr McGowan noted a number of bruises on the right upper arm and shoulder of the accused. These bruises can be seen in the photographs (Exhibit 1). Mr McGowan thought that the bruises were consistent with force having been applied to the shoulder area, as in a grasping of the shoulder by a hand. However, Mr McGowan could not explain why there were five bruises on the accused's right upper arm/shoulder area and one bruise in the accused's right armpit if the marks were caused by a grasping hand, except to say that he may have caused bruising to the upper arm and shoulder when massaging that area. Frankly, I do not find Mr McGowan's evidence as to the cause of the bruising to the accused's right upper arm/shoulder area to be persuasive, particularly as the photographs show definitely seven, and possibly eight, bruises on the accused's right upper arm/shoulder area and one bruise in the accused's right armpit.

51. The third version given by the accused was given to Dr Black on 7 December 2007. Dr Black's consultation note reads:

Incident at refuse centre on Sunday 2/12/07 - alleged altercation with another man. Richard recollects being approached by man and ? pushed on chest. No clear recollection of further incident. No apparent injuries. SB (which means seen by) osteopath re R (which means right) shoulder pain. Bruises noted. OE (which means on examination) R (which means right) shoulder. Bruises x 5

And there follows a sketch and placement of the bruises, including a bruise on the right upper chest below the sternum.

Impr. (which is short for impression): Haematoma consistent with possible injury from being pushed.

Dr Black's evidence was that the accused said that:

He'd been approached by another man and he thought he'd possibly been pushed, but then he really had not a very clear recollection of either by that, and certainly of any further what happened and what transpired further.

I note that the accused did not tell Dr Black that the complainant had grabbed the top of his right arm at the shoulder with his left hand, or that the complainant had raised his right hand towards him. This version is very similar to the version given by the accused to Constable Lockley on 2 December 2007, only five days earlier, but quite different to the version given by the accused to Mr McGowan on 4 December 2007, only three days earlier. Dr Black noted five bruises on the accused's right shoulder, with four bruises on the right upper arm/shoulder area, and one bruise in the right armpit, and one bruise on the accused's right upper chest, as indicated on his consultation card. He considered that the bruises were "consistent with possible injury from being pushed". This must mean that Dr Black thought that the complainant had pushed the accused on his right upper chest using his open left hand, as the bruises could not have been caused by the complainant using a single push with a closed hand, or a single push with his open right hand. However, Dr Black said in his evidence in response to my question, "So, in other words, pushed by an open hand against his chest" that:

I'm not sure open hand. I mean, it's conceivable that he was pushed with a hand out and it was with sufficient force that the fingers made bruises. That's what I came to. I can't be sure, you know, he was clear as to what happened.

As Dr Black had a version given by the accused that he may have been pushed in the chest by the complainant, without an allegation that the complainant had grabbed the accused's right upper arm with his left hand, I do not find Dr Black's evidence as to the possible cause of the bruising to the accused's right upper chest, right upper arm/shoulder area and right armpit to be plausible.

52. The fourth version of the accused is contained in his statement sent to his solicitor by email transmission on 12 May 2008 in which he wrote:

I turned and walked away from the blue Suzuki to our vehicle to get our rubbish. The driver of the blue Suzuki left his vehicle and approached me saying 'Where are you going?' I turned and faced him, 'Sorry, I'll just go to the next line'. The accosting started and he said, 'You want trouble? Well, you've fucking found it' and suddenly he put his hands on my chest, pushing me. I took a step back and said loudly, 'Don't touch me'. He suddenly reached out again, and I repeated, 'Don't touch me'. The man pushed me several times in my right chest and right shoulder area. He was hurting me. And then he moved again. I instinctively threw my right arm up to defend myself and punched him once in the face.

I note that the accused wrote that the complainant pushed him several times in the right chest and right shoulder area. Also, I note that the accused did not allege that the complainant had grabbed his right upper arm at the shoulder, or that the complainant had raised his right arm towards him. This version is quite different from the versions given to Constable Lockley, Mr McGowan and Dr Black.

53. In view of the inconsistencies in the five versions given by the accused, I cannot accept the version that he gave in his evidence.

54. The first version given by Mrs Mulcahy is contained in her statement sent, as was the accused's statement, to the accused's solicitor by email transmission on 12 May 2008 in which she wrote:

They faced each other. I saw the driver raise his hands to Richard. Richard saying 'Don't touch me'. He then pushed Richard hard. Richard then hit him.

I note that Mrs Mulcahy did not allege that the complainant twice grabbed the top of the accused's right shoulder in his left hand, or that the complainant raised his right arm with his right hand formed into a fist.

55. In view of the difference between her first version and her evidence I cannot accept Mrs Mulcahy's evidence as to how the accused came to punch the complainant.

56. Although I realise that he was injured in the incident involving the accused, and therefore he has an axe to grind or a barrow to push, I was impressed by the complainant as a witness. He was calm, composed and careful when giving evidence. He was not emotional or theatrical. He was not caught out or undermined when cross-examined. Although I realise that he left his car to speak with the accused in response to what the accused had said to him, I accept that he was not aggressive towards the accused. Notwithstanding the criticism of him by counsel for the accused, I consider that the complainant has given accurate and truthful evidence. I accept his evidence.

57. I was impressed by Mr Robert Mackey. He was calm, composed and careful when giving evidence. He was not caught out or undermined when cross-examined. Although he did not see everything that happened between the complainant and the accused, his evidence supported and confirmed the complainant's evidence in many respects. I accept his evidence.

58. I was particularly impressed by Mr Scott Mackey. He, like his father, was calm, composed and careful when giving evidence. He, like his father, was not caught out or undermined when cross-examined. I consider that he gave accurate and truthful evidence. I accept his evidence.

59. I accept Mr Benyei's evidence. Although he did not see and hear everything that happened and was said between the complainant and the accused, his evidence of what he saw and heard is generally consistent with the evidence of the complainant, Mr Robert Mackey and Mr Scott Mackey.

60. Although he was calm and composed when giving evidence, and although he maintained his evidence when cross-examined, I do not accept the accused's evidence. The fact that he had given a number of inconsistent versions of the incident involving himself and the complainant undermines his evidence.

61. I am satisfied beyond reasonable doubt of these facts:

(1) The accused called the complainant "fag" or "faggot" or "maggot".

(2) The complainant left his car, walked towards the accused and said, "What's going on here?".

(3) The accused said to the complainant, "Go on, have a fucking go. Take me".

(4) The complainant said, "Why would I?", stepped backwards away from the accused and raised his arms, bent at the elbows with his hands at his shoulders, his fingers pointing upwards and his palms facing forward.

(5) The accused stepped forward towards the complainant and punched the complainant's face with his closed right fist.

(6) The complainant fell backwards, hitting the back of his head on a rock on the ground.

(7) The complainant suffered a laceration to the left side of his upper lip and a laceration to the back of his head.

62. I am satisfied beyond reasonable doubt that the accused's assault upon the complainant was unprovoked and unjustified.

63. I am satisfied that the complainant did not push the accused to his chest once or more with either hand; that the complainant did not grab the accused's right upper arm at the shoulder with his left hand; and that the complainant did not raise his right arm, as if to punch the accused.

64. I am satisfied that the issue of the accused acting in self-defence against the actions of the complainant does not arise because the complainant had not done anything to him to cause him to believe that he had to use force to defend himself.

65. I find the offence proved beyond reasonable doubt.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.

Solicitor for the Prosecution: ACT Director of Public Prosecutions

Solicitor for the Accused: Mark Fleming Criminal Lawyers

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