R v Rao [2008] ACTSC 17

4. The accused has elected to be tried by judge alone. Section 68C of the Supreme Court Act 1933 (ACT), sets out the provisions that are to apply in respect of a trial by judge alone. Sitting as a judge alone, I may make any finding that could have been made by a jury as to the guilt of an accused person and any such finding has the same effect as the verdict of a jury. I am required to include in my judgment the principles of law that I apply and the findings of fact upon which I rely. Where a warning would have been required to be given to a jury were the proceedings before that body, I am to take the warning into account when considering my verdict.

5. I give myself the general directions upon which a jury would ordinarily be directed before retiring to consider their verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or to show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until at the conclusion of the hearing the evidence establishes guilt. Both the onus and the standard of proof lie upon the prosecution and the prosecution must prove each and every element of the offences charged beyond reasonable doubt. Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I reach that finding having been satisfied beyond reasonable doubt.

6. It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit the accused in respect of that charge.

7. Section 12(1) of the Crimes Act 1900 (ACT) (Crimes Act) provides:

(1) A person commits murder if he or she causes the death of another person--

(a) intending to cause the death of any person; or

(b) with reckless indifference to the probability of causing the death of any person.

8. Section 19(1) of the Crimes Act provides:

(1) A person who intentionally inflicts grievous bodily harm on another person is guilty of an offence punishable, on conviction, by imprisonment for 15 years.

9. To make out the charge of murder, having regard to the general circumstances alleged in this case, the prosecution must establish beyond reasonable doubt, each of the following:

(1) that it was the act of the accused in stabbing the deceased in the head which caused his death; and

(2) that that act was done with an intention either:

(b) with reckless indifference to the probability of causing the death of any person; and

10. An act is not done in self-defence when the Crown has established either:

(a) that the accused did not believe that it was necessary in self-defence to stab the deceased with the intention of causing his death or recklessly indifferent to the probability of that consequence; or

(b) that there were no reasonable grounds for forming any such belief.

11. Although murder is statutorily defined, manslaughter remains a common law offence and an alternative verdict to a charge of murder if there is evidence to support such a verdict. In such a case, the prosecution must establish beyond reasonable doubt each of the following:

(1) that it was the act of the accused in stabbing the deceased in the head which caused his death; and

(2) that that act was an unlawful and dangerous one; and

* An act is unlawful if it involves a deliberate application of force to another person without that person's consent.

* An act is dangerous if it is such that a reasonable person in the position of the accused would have realised that, by that act, the deceased was being exposed to an appreciable (or significant) risk of serious injury.

* An act is not done in self-defence when the Crown has established either:

(a) that the accused did not believe that it was necessary in self-defence to stab the deceased; or

(b) that there were no reasonable grounds for forming any such belief.

* It should be noted that the belief of the accused, so far as self-defence is relevant to manslaughter, does not include any intention to kill or reckless indifference to the probability of causing the death of a person.

12. In formulating these propositions, regard has been had to R v Jones (1995) 38 NSWLR 652, which Mr Buchanan put to me as an appropriate expression of the law that I should apply to this matter.

13. In addition, I was asked by Mr Hastings to have regard to the comments of the High Court concerning self-defence in Zecevic v Director of Public Prosecutions (Victoria) [1987] HCA 26; (1987) 162 CLR 645 (Zecevic) (Wilson, Dawson and Toohey JJ at 661 and following):

The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in that form, the question is one of general application and is not limited to cases of homicide. Where homicide is involved some elaboration may be necessary.

Murder consists of an unlawful killing done with intent to kill or to do grievous bodily harm. Recklessness may be put to one side as having no apparent relevance in the context of self-defence. Manslaughter also consists of an unlawful killing, but without such an intent. A killing which is done in self-defence is done with justification or excuse and is not unlawful, though it be done with intent to kill or do grievous bodily harm. However, a person who kills with the intention of killing or of doing serious bodily harm can hardly believe on reasonable grounds that it is necessary to do so in order to defend himself unless he perceives a threat which calls for that response. A threat does not ordinarily call for that response unless it causes a reasonable apprehension on the part of that person of death or serious bodily harm. If the response of an accused goes beyond what he believed to be necessary to defend himself or if there were no reasonable grounds for a belief on his part that the response was necessary in defence of himself, then the occasion will not have been one which would support a plea of self-defence. That is to say, the killing will have been without justification or excuse and it will be for the jury to determine how it must be regarded. If it was done with intent to kill or to do grievous bodily harm, then unless there was provocation reducing it to manslaughter, it will be murder. In the absence of such an intent it will be manslaughter: see Viro v The Queen [1978] HCA 9; (1978) 141 CLR 88 at 101.

14. I was also asked by Mr Hastings to have regard to the comments of Ormiston J in the Victorian Court of Appeal in R v Portelli [2004] VSCA 178; (2004) 148 A Crim R 282. After referring to the distinction considered in Zecevic between justifiable and excusable acts of self-defence, Ormiston J, at [18], cited this passage from Zecevic at 658:

Any practical distinction between justifiable homicide and excusable homicide disappeared with the abolition of forfeiture by statute in 1828 and today it is no part of the law in Australia to differentiate between the two ...

Ormiston J then went on to cite his own judgment in R v Lawson & Forsythe [1986] VicRp 53; [1986] VR 515 to say:

Thereafter "there was no reason why the rules as to self-defence should not in practice, if not in theory, merge", (citing Lawson & Forsythe at 560), although certain rules as to justification not directly referable to self-defence still continue to apply.

If that be the correct approach, then there is no reason why the law should not apply the broader test, that applicable to "justifiable self-defence", to self-defence generally. In other words, any apparent limitation to the right or privilege of a person to respond to the attack of another should not be confined to attacks directed at the accused or a person in some defined relationship to the accused, but should be equally applicable whenever response is made to an attack upon any person, whether relative, friend or stranger, so long as it is understood that the claimed right, the exercise of which the Crown must negative, remains based on what is perceived to be reasonably necessary by the accused in all the circumstances which may, but not necessarily will, be affected by the possible lack of immediacy of that threat. Nor should there be any difference if the offence charged (as in the present case) is less than homicide.

16. The incident in which the deceased sustained injuries occurred at around 4.30 am on 15 July 2006 outside premises from which a nightclub operated known as Cube Nightclub (Cube) at Petrie Plaza, Civic. The clientele of the nightclub were largely, but not exclusively, homosexual persons of both sexes. The accused is the owner of the nightclub and, on the morning of the incident, was there present as its manager.

17. The premises are in a basement area of a building. The entrance to the premises is a single doorway between two unrelated shopfront premises. There is a short passageway which leads to stairs on the left of the passage that go down to the basement. The doorway is the only point of entry from the Plaza. Outside the premises, the Plaza is a pedestrian plaza.

18. At the time of the incident, two doors were used to secure the front entrance of the nightclub. The outer door being a steel frame door with vertical bars and a bar across the centre. The locking mechanism for that door was a bolt secured by a key lock. The inner door was made of plywood on a wooden frame. That door could be locked by three sliding bolts. The wooden door abutted the steel door and both doors opened inwards. They could only be closed and secured from inside the passageway of Cube.

19. The premises adjacent to the doorway in a southerly direction comprise the doorway and shopfront of a café, a set of steps leading to a shopping arcade (Bailey's Arcade) and then the shopfronts of other stores. To the north there is a recessed shopfront which, at that time was vacant, two ATM machines, one alongside the other, the shopfront for the ANZ bank, and then a shopfront for the CPS Credit Union. There are trees and fixed planter boxes in the plaza.

20. Cube had 12 closed-circuit television cameras (CCTV) positioned around the premises. They were all operating at the relevant time. In the area where the incident occurred, there was one camera (camera 1) fixed on the door towards the right side of the front door if a person is standing outside of the club. The other camera (camera 2) was fixed on the ceiling at the end of the short passageway and is also to the right on that ceiling.

21. The images recorded on the system were collated by Sergent Ringrose. He gave this evidence:

MR BUCHANAN: Are you able to say whether the cameras recorded simultaneously? --- Okay. The way the system works is it's receiving images from 12 cameras simultaneously. Each camera produces 25 individual images every second, however, the computer system cannot cope with that many images every second, so the computer system has to prioritise and record only the number of images that it has the power to record at any one time. Okay. What I've done is I've examined this system and identified that the system will record 25 frames every second, but spread across all of the cameras. So, only one image from one camera is recorded at any one time.

MR BUCHANAN: And so, in summary, are you saying that there is no more than 25 images recorded across the whole system per second? --- In the section that I examined that's correct, yes. I counted the number of frames across all of the cameras in a period of one second and I counted no more than 25 frames. That's not to say that other times it wouldn't be more, but it would not be significantly more or less.

MR BUCHANAN: Now, you've told us that cameras 1 and 2 are, in terms of the footage that you've extracted and put onto the CD, are synchronised up to a point? - - - That's correct.

MR BUCHANAN: Can you explain what you mean by that? --- Okay. When we play each camera individually, as I said before, there are 25 frames that are spread across all 12 cameras and so the frame - the frame rate or the number of images every second is shared amongst those 12 cameras. When we viewed the footage from camera 1 and camera 2 separately, I identified that the number of frames in each second for cameras 1 and 2 was roughly five frames per second. It varied between four frames and seven frames, but on average it was five frames per second. If we spread those five frames over one second, the distance between each frame is one-fifth of a second, for arguments sake, so approximately 200 milliseconds. Now because the system can only record one frame from one camera at any one time, it cannot record a frame from camera 1 and camera 2 at the same instant in time ...

22. Sgt Ringrose prepared a video which contained a comparison of the images from cameras 1 and 2 of what was recorded on the system from those cameras. However, as best he was able he has synchronised the images from those two cameras and they are depicted side by side on the video that he prepared. Sgt Ringrose has said, those images are not continuous vision from any one camera nor are they completely synchronised. The comparison video prepared by Sgt Ringrose should be regarded as also subject to the following comments that he made:

As I said, there's approximately five frames per second on some of the cameras at some of the time. The cameras are also motion sensors so if you look at some of those cameras, for example, camera number 10, the staff corridor, there is no motion activity occurring down in this camera. And you can see the time is ticking along but the image itself is frozen. There are no images updated at that point for that camera. You may also note that some cameras have a lot of motion occurring where the other cameras appear to be moving slowly. So that demonstrates the variable nature of the framing, that's how we're able to record five frames for one camera yet only maintain a 25 frame per second rate. If we were to divide 25 frames per second across all 12 cameras evenly, they would only be recording two frames per second. But because there's more motion in some cameras than others some cameras are given a higher priority and record more frames in a second and others record a low number of frames or even no frames per second.

MR BUCHANAN: And so the degree of synchronisation between cameras 1 and 2 isn't affected only by the degree to which there is activity within the frame of reference, as it were, of those particular cameras but also the degree to which there is activity within the frame of reference of the other cameras? --- That's correct. That's correct. The system is a fairly complex package and has a number of settings that you can adjust. And one of those settings is a priority camera. It can identify certain cameras as being a higher priority than other cameras. And we identified that at least camera 1 had been ticked as being a priority camera.

23. The cameras also display the time of the images that they record and this time is synchronised for all of the cameras. However, the prosecution, in opening informed me that the time shown on the images was 12 minutes ahead of the actual time. The precise time of the events is not particularly relevant and it does not seem to me to matter that there is no evidence specifically given of this discrepancy. When I make reference to the time, it is the time displayed on the CCTV images and where necessary, I have calculated intervals of time by reference to the time displayed.

24. The video shows that at about 4:36:45 on 15 July 2006, the deceased, Taulata (Tau) Taufa, Sione (John) Ahosivi and Tsi Tui came to the front door of Cube as a group. Shortly after they were joined by Uelese Faumuina. Each of these persons are of Pacific Island heritage and are referred to as the Islander males. The five Islander males had earlier been drinking together at other places in Civic. They were each, to varying degrees, affected by liquor. The Islander males were all of significant physical proportions and, at the time, the majority were active rugby players with the physique that one would expect from that sporting background.

25. At that time, Adam Street was the security officer (bouncer) at Cube. He was at the door when the Islander males arrived and refused them entry because, in his view, they had had too much to drink. What took place after this is recorded on the CCTV. I take Mr Street's evidence to be supported by what appears on that video and have no reason not to accept generally what he said about the events in which he was involved in at that time.

26. In particular, he said that the Islanders were insistent and argumentative and tried to bribe their way into Cube. They made threats which Mr Street characterised as being "threats against myself, coming in and bashing everyone in the Club, bashing poofters as they leave ...". The situation caused Mr Street to press the device that he had with him known as a panic button. That device was connected to a special strobe light in the bar and dance floor area of the Club premises and alerted the accused along with others, to a situation at the front door of the premises.

27. Although Mr Street had described the demeanour of the Islanders at that time as "laughing and joking at me", it is plain that he was sufficiently concerned enough to press his panic button. He clearly felt that he was no longer able to control the situation. That is important because it was the prosecution's contention that it was not until the accused arrived on the scene that the atmosphere changed to one of violence and threats. I do not take the fact that the video shows the Islander males and indeed Mr Street as discussing matters with their hands in their pockets and what is said to be relaxed postures as detracting from the fact that threats were being made at that early stage and that they were sufficient to concern Mr Street and to cause him to act in the way he did.

28. It seems that when the accused appeared, the atmosphere of impending violence did increase but I do not regard that as being attributable to any specific conduct of the accused. The fact is, the accused joined Mr Street at the doorway and added his formidable presence to continue denying the Islander males from being able to enter the Club.

29. The accused is six foot five inches (195 cm) tall and, at the time, weighed about 110 kg. He was dressed in light coloured jeans and a black singlet. His upper left arm and the back of his neck bore tattoos. He was of redoubtable appearance. Nevertheless, I accept that in telling the Islanders that it was past four o'clock, that the Club was shut and they were to "fuck off", he was not speaking aggressively or attempting to provoke aggression from them. His presence, however, coincides with the Islander males becoming more abusive, derogatory and threatening. Mr Street described the circumstance, which I accept, in these terms:

They began to get a lot more derogatory, "You're not going to live through the night", "We're going to kill you", "We're going to piss on you", "You're going to die", "you're a fuck head", "You're a poofter" and it got a little bit more violent as far as their words were concerned and then they started circling around and one of them decided it was a good idea to leave.

30. Before the accused came to the doorway, two of the Islanders had moved away to the stairs at the entrance to Bailey's Arcade. They were Uelese Faumuina and Tsai Tui and it was there that they had a conversation with Angelique Byrne and Belinda Donkers, two of Cube's patrons. At that time, the video shows that, the deceased seems to be the main protagonist engaging in argument with Mr Street and then the accused as he comes to the doorway. This continues for some five minutes whilst various people attempt to gain entry, some gaining entry and some exiting. During this time most of the argument seemed to be directed to Mr Street or is inconclusive as to whom it was directed. Mr Street was positioned slightly to the fore on the left-hand side of the doorway. The accused was half turned for most of this time, to the right and slightly back from the doorway. The deceased was facing more to the left of the doorway and seems to be making his comments generally to Mr Street. However, when the deceased finally moves off after this time, his parting comments seem to be directed to both the persons in the doorway.

31. Some two minutes after the accused arrived at the doorway, Mr Street said that the accused asked one of the Club's employees, James (Jimmy) Hardiman, who had come up to the passageway, to call the police. He is seen on the video to be apparently attempting to do so and, then apparently having difficulty with the telephone call, he pushes past the accused and Mr Street and goes out into the street and up towards London Circuit still, he said trying to telephone the police. With the deceased moving off, Mr Taufa and Mr Ahosivi were left at the doorway and they remain for some two minutes before Mr Taufa also left to go towards the stairs at Bailey's Arcade. Apparently at Mr Taufa's urging, Mr Ahosivi also started to move in that direction.

32. At about that time, according to Mr Street, the accused made a comment to him in terms of, "Why do all these black cunts have to be so fucking stupid?". Mr Ahosivi is seen on the video as returning to the vicinity of the doorway and Mr Street says that he challenged the comment that had been made. He said that Mr Ahosivi loudly repeated the epithet "black cunts" and all of the Islanders made to return to the doorway. Another Islander, Nuuomau Alex Solipo, joined them at that stage. However, he does not appear to take any real part in the subsequent altercation other than as an observer.

33. Mr Street said that when challenged, the accused said to the group, "Is that what I said? Is that what you are?". No doubt there is a degree of provocation in that response but I do not find, as the prosecution sought to contend, that it was a necessarily aggressive remark to be construed either as an invitation to engage in a fight or to provoke an assault.

34. It is clear that at that stage the intensity of the confrontation had escalated but that intensity still seems to have been more on the part of the Islanders than the accused and Mr Street. According to Mr Street, the comments that were being made by the Islanders at that stage were, "You're going to die, we're going to piss on you, you're fucked.". Certainly the stance adopted by the accused and Mr Street in the doorway during this time does not convey an aggressive attitude on their part.

35. At this time, the video shows the deceased enter the outer limit of the area shown on the video and walk to the base of a tree in the Plaza positioned to the north but also on the edge of the area covered by CCTV. The deceased picked up what is later shown to be a hessian sandbag from near the base of that tree and advanced towards the group surrounding the doorway of Cube. How much sand is in the bag is unclear, on one view of the video it did not appear to be particularly full. It is clear from the perspective viewed by camera 2 that the accused, who is standing almost shoulder to shoulder with Mr Street in the doorway, appears to observe the actions of the deceased in picking something up. The accused reached behind himself and took from the waist of his jeans to his right side what is later shown to be a short-bladed knife that operates with a flick mechanism. The video shows and the witnesses deposed to the deceased coming between the group around the doorway and then striking the sandbag above and close to the head of the accused. The strike made a loud noise. The sandbag apparently split. Two more blows from the hessian bag were made in the accused's direction. In respect of each of these blows the deceased moves back before coming forward to make each strike.

36. From the synchronised video images that Sgt Ringrose made, the views from cameras 1 and 2 seem to show that the accused did not open the knife that he was now holding until after the first of the strikes made by the deceased. The video shows that the accused put up his left arm to parry the second strike. As the deceased is preparing to make the third strike, Mr Faumuina, who at the time was in front of Mr Street, punched at him. As it later transpired, the punch was an extremely forceful one as it fractured Mr Street's eye socket. It sent Mr Street reeling back into the passageway. As he reels back, the accused is seen on the video coming forward and at the same time Mr Ahosivi is shown throwing a punch towards the accused during that forward movement. It is not clear whether the punch thrown by Mr Ahosivi struck the accused but in the course of that forward movement, it may be assumed that the knife that the accused has in his right hand struck the deceased.

37. The deceased is shown to move off in a southerly direction and the accused in a northerly direction. The video shows the accused being pursued at least by Mr Ahosivi. Mr Street is seen coming out of the doorway in the same direction taken by the accused and then he goes out of the frame of the camera.

38. Mr Street said that on coming out of the doorway he commenced punching the Islanders in front of him until he saw the accused lying on the ground. At that stage he said that he saw one of the Islanders, who it seems was in fact the deceased, kicking at the accused's head. He described the kick, "He soccer kicked him, like a penalty kick for goal". Mr Street then punched this Islander from behind to the base of his skull and at that stage others, who he said kicked and punched him, attacked Mr Street. He then tripped and hit his head on the ground and, he said, had his face stomped on and, as well as, a person kicking him in the top of the head. Within the space of less than two minutes, he is seen on the video to come back into the video frame of camera 1 staggering and apparently disorientated before being assisted by others to sit down to the left-hand side of the front door.

39. There were a number of witnesses who were in a position to give evidence of that part of the incident in which the prosecution says the deceased was stabbed by the accused. However, as will be seen, no-one described that actual circumstance.

40. Mr Faumuina said that he saw the deceased swinging some "sort of thing", heard a thump and ran in and punched the shorter bouncer (Mr Street). He said that he did not see any contact between the deceased and the accused. He also said that he later wrestled with and punched the accused until he was unconscious.

41. Another of the Islanders, Mr Taufa, said that he saw the deceased "whipping" "the mesh bag" and then throwing a punch at the second bouncer (the accused). He said, "then from there they (the bouncers) came out". He did not see any contact between the deceased and the accused.

42. Mr Tui thought that he saw the deceased, as he put it, "come over the top" and deliver a punch to the second bouncer (the accused). He then said:

From what I recall the second bouncer came out and just went after Nato [the deceased] and - - -

Went after Nato?---Yes.

What do you mean by that what did you see him do?---Like as he's jumped out of the door and sort of went after Nato or he was trying to grab him and that. And then they sort of reared off towards the downhill side and then I remember Uels [Uelese Faumuina] following straight after and then - and then John [Sione Ahosivi] ran out after as well and in front of the door it was just me and Tau standing and then I remember the first security guard running out and punching John from behind.

He, too, saw no actual contact between the deceased and the accused.

43. Mr Ahosivi said that he had no recollection of seeing the deceased appear to strike at the bouncers with a sandbag. He maintained that evidence even after he had been shown the video evidence. His recollection was:

He came out of the club wanting to fight us.

Who was "he"?---The second bouncer.

Right. How did he come out of the club?---Like he just walked out and like - just he said, "Who's next?", like what "Who's up?" or something like that.

Where was the second bouncer when you heard him say that?---He come out of the club, so - like he was more towards the carousel side.

The roundabout?---Yes.

Merry-go-round?---Yes, merry-go-round.

And what was he doing when you heard him say, "Who's next?"?---No, he was just standing there and then Uelese and him had a fight.

He also had no recollection of his action as depicted in the video of appearing to throw a punch at the accused at the time that the video shows the accused apparently making contact with the deceased.

44. Mr Solipo was a cousin of the deceased who happened by the Islander group during the latter part of the altercation between them and the two bouncers at the doorway. He is seen on the video as part of the group, although does not appear to be playing any active role. He heard a big bang on the front door and described what he saw:

And what happened next?---I saw a bouncer came out.

Which bouncer?---The big fellow.

The one you described earlier? How did he come out?---Just walked straight out and he - - -

And what happened when he walked out?---He just having a fight with him.

Having a fight with who?---Nato [the deceased].

With Nato?---Yes.

What did you see of them fighting?---Just he's swinging his arm up in about one second and Nato was on the floor.

And where was Nato on the floor?---I can't really remember.

Can you remember where he was on the floor in relation to the doorway?---No.

45. Mr Solipo is the only witness who actually said that he saw some form of contact between the deceased and the accused. It is, however, (having regard to what is depicted upon the video) an imperfect recollection of the event as at that time, the deceased was not "on the floor" but is clearly depicted in the video as moving away from the accused and it is over a minute later before the deceased collapsed to the ground. It is clear from the video that any contact between the deceased and the accused did not result in the deceased immediately going to ground.

46. None of the immediate participants in the fracas gave evidence of actually seeing the event relied upon by the prosecution as constituting a stabbing by the accused of the deceased.

47. Other than those who participated in the fighting, witnesses who observed much of it were called. James Hardiman was working on the bar in Cube. He saw the flashing light that Mr Street had activated and told the accused. He then followed the accused up the stairs. He saw three males of Islander appearance and observed the argument with Mr Street. He was asked by the accused to phone the police and he attempted to do so whilst in the passageway. He had difficulty in getting connected and he stepped out between the accused and Mr Street. He then went some metres up the Plaza to London Circuit where he attempted to flag down police vehicles whilst also attempting to contact the police on the phone. He looked towards the doorway of Cube and saw that there were now five Islander males at the doorway; two other males that he had seen on the steps leading to Bailey's Arcade had joined the three that he thought were at the doorway when he had left. He described what he saw:

Okay. And what could you see happening?---Males one, two and three were still in the original sort of formation with males four and five now somewhat in a semi circle at the front door and I saw male two or three throwing something or flinging something over his right shoulder.

And in what direction?---Towards Maurice [the accused] and Adam in the doorway.

Could you hear anything?---I heard what I believed to be a smash, maybe like a glass breaking or something like that.

What was the next thing that you heard or saw?---I believe all the males, or males one, two, four and five were throwing punches and kicks in the doorway and male two or three, I don't know which one, had the bag, was still flinging it.

Right. Could you see it was a bag from where you were?---Yes.

You could see it was a bag?---Yes.

Okay. Have you see video footage from the security camera of the event outside the door?---No, I haven't.

You haven't seen it?---(No audible reply).

What's the next thing that you remember seeing?---I saw - I don't know if it was a patron, but I saw someone on what looked to be a mobile phone walking up around the corner towards the bus interchange.

Walking up Petrie Plaza?---Yes.

And was that a person you recognised?---No.

It wasn't?---No.

Can you describe that person?---I think it was someone of fair hair and a light coloured brownie jacket.

And could you see anything more of the event that was occurring down outside the doorway of the nightclub?---At that stage I believe Maurice came out of the doorway and three of the males focussed on him. Adam also came out of the doorway and two of the males focussed on him.

Did you see what Maurice did when he came out of the doorway?---He was - had sort of one arm up defending himself, was moving quickly around sort of males one and two towards the left.

Could you see what Adam was doing as he came out of the doorway?---From memory, I believe he was throwing a punch while also being punched by another male at the time.

48. This account by Mr Hardiman as far as the accused's movements are concerned is confirmed by what is shown on the video.

49. Kate McDougal, a club patron, came up the stairs after the accused and was standing in the passageway observing much of the confrontation. There are aspects of her observations which the prosecution question as being unreliable unless corroborated in some way by other material. There is some force in those criticisms. She was incorrect in her evidence as to the positions of the accused and Mr Street in the doorway. She was also inaccurate as to the clothing that was worn by the accused. She gave evidence of circumstances that the video shows did not happen such as her giving a phone to Jimmy Hardiman and leaving with him whilst he was attempting to make the phone call. She described the accused being hit by the sandbag and being hit on the left cheek. She also described the accused actually grabbing the sandbag to stop it from hitting his head. She said the accused was still holding on to it and was pulled out the door whilst Mr Street was standing next to him. Each of these matters is contradicted by other evidence or material which I accept. Ms McDougal concluded by saying, "Maurice was dragged out, to the best of my knowledge, and all of the Islanders all jumped on Maurice at once". In any event, she did not depose to any contact made by the accused to the body of the deceased although she was directly behind the accused as he came out the doorway.

50. There were three other persons in the area of Petrie Plaza in the vicinity of the ANZ Bank and CPS Credit Union premises who observed the violence in the doorway of Cube. Karolina Jones, Shane Russell and Rachel Stephenson all described hearing a whipping (or, in one case, a flicking) sound and all of them described the accused as being "pulled" out of the doorway and being punched. In any event, their evidence does not support the proposition put by the prosecution that the accused "attacked" the deceased with murderous intent.

51. Ms McDougal went to assist the accused and on her account, and on the account of other witnesses, the deceased had collapsed and was lying in a large pool of blood a short distance from where the accused had collapsed. Ms McDougal noticed a knife halfway between the accused's feet and the deceased which she said she slid along the ground back towards Mr Street who, at that stage, was slumped to the left-hand side of the Cube doorway. The knife was also seen by Ms Jones, it would seem, in the same position as Ms McDougal had described. Ms Jones also said that the knife was covered in blood. She said that she was asked by the woman attending the accused (Ms McDougal) to go downstairs and get help. Ms McDougal said that she tried to close the knife before she passed it on to Mr Street but was unable to do so. Mr Street said that when Ms McDougal passed it to him he told someone to get rid of it and that he now knows that person to have been Thomas Hathaway, the door clerk at Cube. Mr Hathaway says he "took it upon himself to take the knife". He picked up the knife and threw or slid it across the floor of the passageway to the club. He then picked it up and he said that he tried to "discretely" close it, but was unable to do so. He wrapped it in a towel and took it downstairs where he described how he hid it, before eventually taking it home with him. His action in taking the knife is depicted on the video from camera 2.

52. Ambulance officers attended to the deceased, Mr Street and the accused. The deceased and Mr Street were taken to hospital. The accused remained at the club premises. Timothy Smith, the bar manager on that night, supervised the cleaning up of the club after the incident. The accused appeared downstairs and, to Mr Smith, appeared as though he really needed to go to hospital. After some time, he was persuaded to do so and he was driven to the hospital by Mr Smith in the accused's vehicle. Mr Smith said that he did not have keys to the club and that he secured the club by using the keys belonging to the accused which were with the car keys. The accused admitted himself to the Canberra Hospital at 6:40am on 15 July 2006.

53. After taking the accused to hospital Mr Smith used the accused's vehicle to take Kate McDougal to the Civic Police Station to make a statement. At that time, the police seized the vehicle and took the car keys but Mr Smith retained the keys to the club.

54. Later that day, at 1:45pm, Constable Warwick spoke with the accused at the Canberra Hospital. There was a conversation about the security cameras at Cube and the police officer was given the name of the company that had installed the cameras. The accused said that he did not wish to comment further and wished to leave the hospital. At about 2:30pm he did, in fact, leave the hospital and was driven by a friend to the City Markets, off Bunda Street, in the City. It is said by the prosecution that he left the hospital against medical advice and that is correct as far as it goes. However, it is plain from Dr Natale's notes that the accused was anxious to quit the hospital at an earlier time. At least at 1:20pm the accused was "demanding to leave". At that time, the accused agreed to stay to await his neuro surgeon who was to be there in the next 10 minutes. That apparently did not happen. But it was not until after this event that Constable Warwick attended on the accused. From the notes of Dr Raynor, the Neurosurgical Registrar, it was then not until 2:25pm on that day that the accused put his case to be discharged.

55. I do not draw an inference adverse to the accused that there was a police interest in the CCTV cameras as necessarily being the factor which caused the accused to discharge himself from the hospital.

56. The accused was driven from the hospital to City Markets in The Canberra Centre, Civic. At the time that portion of the City Markets housed the shop premises of Canberra Fresh Pty Limited, a fresh fruit and vegetable market, carrying on business as Simply Fresh. A telephone call was made from a number belonging to that company by the accused who left a voice mail message for Mr Hardiman to return the call. Some four minutes after that message was left, Mr Hardiman returned the call and the accused spoke to him. Mr Hardiman's evidence of the conversation was:

What's your best recollection of the words you heard him use?---"Did Adam give you..." - and that was it and I said I think I know what you're talking about, no.

Did he respond to that?---He did.

What did he say?---He said something along the lines of, "Well that's not any good for me" and terminated the call.

57. The accused was then driven to the rear entrance of Cube where the police were present with a search warrant and the warrant was then executed.

58. The prosecution relies upon what is said to be the premature discharge from the hospital and the telephone call from a phone other than the accused's mobile phone as not only suspicious conduct but as evidencing a consciousness of guilt. There are significant difficulties, in my view, in considering this to be so. The accused's actions are sought to be construed as conduct amounting to, in effect, an admission concerning a material aspect of the prosecution case although the prosecution does not make clear whether this goes the fact of striking the deceased in the head or the intent to murder the deceased.

59. As best I understand it, the material aspect that the prosecution would say that this evidence goes to is that the accused had stabbed and gravely wounded the deceased and that he had done so other than in self-defence. If that is a correct statement as to the materiality of the accused's actions, then they fall far short of showing some admission of those facts or any part of them.

60. Mr Buchanan put that the conduct of the accused in relation to this telephone conversation evidenced a consciousness of guilt which I should take into account in assessing the accused's intent at the time of the stabbing. In Woon v The Queen [1964] HCA 23; (1964) 109 CLR 529, Windeyer J referred to the general concept of consciousness and guilt in the following passage (at 541-542):

Demeanour and conduct may discount denial and manifest guilt as surely as would a confession made by words. But I think that Dr Coppel [counsel for the applicant] was right when he said that the inference which can be drawn from conduct and demeanour that displays a consciousness of guilt may depend upon whether there is other evidence pointing to the accused as guilty of the offence charged. When there is, false accounts of movements, false denials of knowledge of relevant facts, any conduct, utterance or demeanour demonstrative of guilt may go far to support a conclusion that the accused committed the very crime charged. But when there is no other evidence implicating the accused, an attitude of guilt, without more, may mean only that the accused was a participant in some wrongdoing, not that he committed the crime alleged, in manner and form alleged.

61. In Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, the High Court was primarily concerned with lies that the prosecution sought to rely upon as evidencing a consciousness of guilt in respect of the offence allegedly committed by the accused. In that case, the court was concerned to precisely identify the issue in the case to which the conduct (the lie) could fairly be directed. Importantly, as far as a direction to the jury is concerned, and one that I should be conscious of, the court said (at 211):

... the jury should be instructed that there may be reasons for the telling of a lie apart from the realisation of guilt. ... A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission.

62. That statement may be adapted to the circumstances of this case which relies not upon a lie but matters upon which the prosecution would seek to rely as incriminating conduct. In other words, if there are other explanations for the accused's conduct upon which the prosecution seeks to rely and that conduct is reasonably explicable upon that other basis, then the accused is not to have that conduct held against him.

63. In R v Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479, the accused was charged with murder but his defence raised an accidental shooting. That was a case where lies, amongst other things, were relied upon by the prosecution as indicating a consciousness of guilt on the part of the accused. In that case, Winneke P preferred the characterisation of post-offence conduct as supporting an inference of consciousness of guilt. He recognised that the expression "consciousness of guilt" could well be misleading as it was an inference to be drawn from the evidence of the accused's conduct, not a special category of evidence in itself. (cf R v White [1998] 2 SCR 72; (1998) 125 CCC (3d) 385.) Winneke P went on to say (at 489):

The probative strength of post-offence conduct, such as concealment of weapon or flight, with or without "covering lies", will depend upon many factors including the circumstances in which the conduct occurred and the issue in proof of which the evidence is tendered. If it is open to be used by the jury for the purpose of drawing an inference as to the state of the accused's mind at the relevant time, the conduct will have to be assessed in the light of the probabilities. But, because such evidence is capable of being misused by the jury, the interests of a fair trial to the accused require, as I think they required in this case, a careful direction from the trial judge of the type referred to in Edwards_. Such a direction should have involved a specific identification by the trial judge of the conduct being relied upon by the Crown to prove murderous intent; a direction that they could only use such conduct as proof of guilt if they were satisfied that there was no other explanation, consistent with innocence for it; and that the accused only engaged in the conduct because he knew that revelation of the truth would implicate him in the offence charged. Properly directed, the jury should also have been told that conduct such as that relied upon by the Crown could stem from reasons other than realisation by the accused of his guilt of the crime charged, what those other reasons might be, and that, if they accepted that a reason of that kind was the explanation for the conduct, they should not use the evidence as probative of guilt._

64. In the present case, there are, in my view, other explanations for the accused's conduct capable of providing an explanation for the telephone call to Mr Hardiman from the Simply Fresh premises which compete with the inference that the accused did not want his conversation overheard or traced and the implications that the prosecution would wish to draw from this circumstance. I say this on the assumption that the conversation the accused had with Mr Hardiman was for the purpose of locating the knife. Those other explanations arise from the evidence of John Commisso and Timothy Smith. Mr Commisso was the proprietor of the business Simply Fresh.

65. Mr Commisso's evidence was subject to an application by Mr Buchanan under s 38 of the Evidence Act 1971 (ACT) to cross-examine him on the evidence that he had given that the accused's brother, Wally Rao, was on the premises on that day. In a statement, handwritten by a police officer made on 1 February 2008, Mr Commisso had said that to the best of his memory, he did not recall seeing the accused's brother come into the store on that day. However, the thrust of the evidence given by Mr Commisso was not covered by that written statement taken by the police which otherwise only referred to the accused attending the premises on that day and having permission to use the telephone on the premises. The evidence that he gave detailed how he came to ring the accused's brother on that day because one of his delivery drivers was not able to deliver to "Maurice's club" because of the police presence. He also said the accused's brother rang him about midday to pick him up from the hospital and how he and the accused's brother, went to the accused's mother's house to pick up a set of keys which were then taken back to the Simply Fresh premises. Although Mr Commisso's explanation as to why he told the police that he did not recall seeing the accused's brother come into the store that day is not particularly convincing, I am still prepared to consider the possibility that the accused's brother was in fact in the store on that day.

66. There is no doubt there is a family relationship between the accused, the accused's family and Mr Commisso and that would be a reason for the accused to be on the premises in order to get the keys to the nightclub from his brother. I do not consider that the prosecution have negated this possibility simply because Mr Commisso told the police that he could not recall the accused's brother being there on that day.

67. Mr Smith gave evidence that he accompanied the accused from the hospital to the building housing Simply Fresh. He said he saw the accused come out of the building with the keys of the club with him. Although he said that he was in a separate car to the accused, he concedes that it was possible that it was the same one. Police surveillance, in fact, shows that there was only one vehicle that took the accused from the hospital to the Simply Fresh premises. The original keys to the club were on the key ring of the vehicle that the police seized. Mr Smith said that he had possession of those keys and he was with the accused when he left the hospital but said that he never communicated that fact to the accused. Mr Buchanan said Mr Smith's evidence should be discounted because it is impossible to believe that there was no discussion about the keys when Mr Smith was at the hospital. However, I am not prepared to draw that as an inescapable conclusion. I consider that it is a possible explanation for the accused being at the premises and that he was there for the purpose of obtaining the keys to the club. That does not mean that the fact of the telephone call to Mr Hardiman is not suspicious because the accused did not use his mobile phone to make it. However, that circumstance alone is not enough to enable me to draw as the only inference from the accused's conduct a realisation on the part of the accused of his guilt of the crimes charged.

68. In my view, it attributes too much to the circumstances surrounding the telephone call to Mr Hardiman and its content to consider that it is a necessary acknowledgement by the accused that he struck the deceased in the head or that he had a murderous intent in striking the deceased. In circumstances where the accused knew that he had a knife at the time of his engagement with the deceased, his interest in determining where the knife was, is explicable as at least arising from what Winneke P in Nguyen (supra at 490) describes as "a legitimate desire to avoid being held responsible for what had happened".

69. In a similar way, I view the comments that the accused made some time after the event, in August 2006, to Mr Street. Mr Street gave evidence as to that conversation:

Was there any conversation about the events that had occurred at

Cube Nightclub that you've just told us about today?---Yes, there was.

What was said about that?---We were having a conversation and I asked him if he felt bad and he said, "It's not my fault he had an unnaturally thin skull for a coconut."

What was it you were asking him whether he felt bad about?---About the fact that he's dead.

And at that stage had you heard that an Islander had died?---Yes, that's correct.

Was there anything else that [the accused] said?---He said, "It's not" - "I didn't go to his club and pick a fight with him, he came to my club and picked a fight with me."

70. Although these comments are quite insensitive, with significant overtones of racism, I am not prepared to conclude that they go to the accused's culpability in respect of the offences with which he is charged. Further, the prosecution says that the accused might have been expected to say, or explain in response to Mr Street's questions at that time, does not mean that the fact that he did not do so should be held against him so as to infer the intent that the prosecution would wish to attribute to him at the time of the incident giving rise to the charges of to negate any belief as to him acting in self-defence.

71. If, as I think they must, the things done and said by the accused after the incident are taken out of the equation, the real issues are dependent upon an assessment of all the evidence of what took place at the time of the alleged stabbing rather than those matters that took place later.

72. Dr Malcolm Dodd, a forensic pathologist performed an autopsy on the deceased and concluded:

1. The cause of death in this case is one of complications arising from a single penetrating stab wound to the head.

2. Information provided to me indicates that the deceased had been stabbed through the left temple with a knife.

The knife has penetrated the cranium and has extended from left to right and posteriorly in the transverse plane to traverse the left occipital lobe and left cerebellar hemisphere.

73. Mr Hastings put at the forefront of his submissions that the prosecution had not established that the accused had inflicted the wound which caused the death of the deceased. No witness saw the accused strike the deceased in the head despite a number of the witnesses apparently being in a position to do so. The CCTV does not show any actual contact between the accused and the deceased's head.

74. Simone Lewis was called by the prosecution as an expert in human biomechanics. She analysed the events shown on 20 consecutive images taken from camera 2. They show the deceased at the point of his third strike at the accused with what was now an apparently empty sandbag. The images show the accused coming out and moving towards the deceased, at that time Mr Ahosivi is also shown as striking at the accused. In her report, Ms Lewis refers to the accused as Subject A, the deceased as Subject B and Mr Ahosivi as Subject C. Her report sets out the following findings:

Strike 1 occurs between frames 5 and 7. This is evident by the subject's motion during these frames which is detailed in Appendix A and described in this paragraph. From frame 5 to 7 subject A is moving forward towards subject B and Subject B is continuously moving backward. During these frames Subject A's right arm is extended at the shoulder past the body and bent at the elbow, in my opinion this is consistent with someone reaching back, preparing to strike forward. In the following frame (5) the arm has moved forward rapidly in front of Subject A's body towards Subject B, this is evidence as Subject A's right shoulder is no longer visible. The motion of the left arm being lifted with the elbow bent and the hand extended in my opinion indicates that the subject is counter balancing the strike.

Strike 2 occurs from frame 7 to frame 8. The indicator of the second strike is Subject B's lack of coordinated motion and lack of ability to maintain a balanced body position through out this time. This can be supported by the principal of stability. Stability is the individual's ability to maintain balance or resist a change in their displacement. There are a number of factors that affect an individual's stability. The factors that are relevant in this situation are, size and shape of the base of support, height of the centre of gravity and the line of gravity in relation to the base of support (Luttgens and Hamilton 1997). The larger the area created by the base of support, (in this case a wider position of the individual's feet) results in a more stable positioned individual. An individual is also more stable when their centre of gravity (main area of body weight) in lowered.

...

It is unlikely that Subject C has had any influence of Subject A's motion between frames 4 and 8. In frames 5 and 6, Subject A passes under the left arm of Subject C, during this time Subject C's wrist is extended and their hand is open (no fist is being made). The momentum of the movement of Subject A has begun long before these frames when subject is travelling out of the door way, the movement of the subjects whole body out of the doorway towards Subject B is uninterrupted indicating that if Subject C has contacted Subject A between frames 5 and 6 it has had little effect. Also at this time Subject C's right arm is extended with a fist in preparation to strike Subject A. It is unclear if this strike contacts Subject A. In the event that there was contact between Subject C and A at this point it is very unlikely that it is with the subjects head. This is because Subject A's head is tilted down in frame 5 and then raised in frame 6. If there was a strike to Subject A's head by Subject C's right arm then Subject A's head would move in the line of the strike, away from the strike. As Subject A has lifted their head, this movement is in the opposite direction of the strike.

75. Mr Hastings submitted that Ms Lewis' evidence was flawed at the outset by the fact that she was not asked to provide an account of what she observed from the frames, but was asked to look for evidence of a second strike on the deceased. Even if this be so, Ms Lewis has approached her task by explaining why she is of the opinion that there were two strikes and I would not discount her evidence as a result of this criticism. In the end, Ms Lewis put her task into perspective. She was asked by Mr Hastings as to the extent that pain might have been a relevant factor in causing movement and she said she could not comment. She was then asked:

Well that was why I suggested to you earlier that your analysis of this situation is somewhat simplistic without taking into account matters of the type which might influence the movement of the body of someone like person B or indeed person A?---It's a qualitative analysis, a kinematic analysis. So it is a grassroots analysis using fundamentals of biomechanics. It's not an in-depth analysis and I've never claimed it to be an in-depth analysis.

76. I accept Ms Lewis' opinion on that level. In doing so, I am conscious of the limitation that Ms Lewis placed on her evidence, namely that she had no knowledge of the knife wounds suffered by the deceased or the possible use of a knife by the accused. However, at the basic level deposed to by Ms Lewis, and notwithstanding the criticisms levelled at her evidence by Mr Hastings, I am satisfied that her evidence supports a second strike by the accused to the deceased and I couple that evidence with the fact that the only other strike wound sustained by the deceased was to his temple on the left-hand side of his head.

77. The issue is then whether, between the contact between the accused and the deceased and the time that the deceased collapsed, there was any reasonable possibility that another person had inflicted the knife wound to the head of the deceased that caused his death.

78. The prosecution referred to a report by Mojca Keglovc, a forensic biologist, who conducted DNA testing on a number of items that she analysed. On the accused's jeans, she found apparent blood stains on the outside front right leg and front left leg. A DNA profile taken from those stains she concluded provided extremely strong support for them being identical to the DNA profile from the reference sample that related to the deceased. The prosecution pointed to Ms Keglovc's evidence that excluded there being a DNA profile from Mr Street on the knife. There were blood stains on Mr Street's t-shirt and on his white long-sleeved shirt. Each of the blood stains on these items all matched Mr Street's DNA profile and the deceased was excluded as being a donor to this profile.

79. Reference was made to the evidence of Dr Dodd that the head wound would have bled profusely at some stage but the wound to the abdomen may not have. Dr Dodd also said that the pool of blood in which the deceased lay at the end of the incident could be attributable to the head injury. The injury to the abdomen, because of the muscle tissue, would, most likely, not have resulted in bleeding. There was no other blood of the deceased found on the pavement other than where he finally fell. In addition, Dr Robertson, a forensic scientist, who examined the four shirts that the deceased was wearing at the time, says that the one stab-like cut to the front lower left of this clothing was unstained. This finding is inconsistent with there being any bleeding from the wound to the deceased's abdomen.

80. On the other hand, the defence point to the evidence of Mr Faumuina where he described the deceased on the ground with Mr Taufa, who is trying to cover the blood that he said was, "coming out of his stomach". That, however, does not accord with Mr Taufa's evidence that when he was attending to the deceased, the blood was coming from the head of the deceased and that there was a lot of blood on the ground.

81. The defence also pointed to the fact that the photo frames of images eight and nine, at the time it is said that the blow was struck, do not seem to support bleeding in that area and no witness appears to have seen it at that time. Nor was any of the deceased's blood detected on the pavement from outside the doorway to where he eventually collapsed. However, all of that has to be looked at in the light of Dr Dodd's evidence that one would have expected the head wound to bleed profusely but not the wound to the abdomen. The best that I can do is to think that the deceased's blood on the front of the accused's jeans is consistent with the proposition that the deceased was struck in the head by the knife held by the accused when he first made contact with the deceased.

82. The defence say that the prosecution have not excluded the possibility that it was Mr Street who used the knife. It may be recalled that Mr Street's evidence was that he struck the deceased from behind. Kate McDougal says that he was face to face with the deceased when he struck him and Rachel Stephenson said that she saw "Adam's [Mr Street] head come into contact with the head of the male in the multi-coloured shirt [the deceased]". None of these descriptions are consistent with Mr Street using a knife in respect of any contact that he had with the deceased at that time. The defence say that the actions in Mr Street seeking to dispose of the knife demonstrate a consciousness of guilt on his part which should lead to a reasonable possibility that it was he who had used the knife. However, considering that it was passed to him by Kate McDougal who, at the time was attending to the accused, I am not prepared to draw any unequivocal inference of such a kind.

83. Having regard to all of the evidence related to Mr Street's contact with the deceased, I do not regard it as a reasonable possibility that it could have been Mr Street who struck the deceased in the head with a knife. I am not able to say that between the time of the accused's contact with the deceased and before the deceased collapsed to the ground, that there was any reasonable possibility that a person other than the accused had struck him in the head with a knife.

84. It is clear that the accused did not have the knife after the opportunity that he had to strike at the deceased in the manner depicted in the frames from the video. A frame of the video immediately after the contact between the accused and the deceased shows the accused's right hand fairly clearly and there is no knife in it. Although there is no explanation as to how the knife came to be found by Kate McDougal between where the accused and the deceased were lying, I do not consider that this circumstance is sufficient to detract from my conclusion that the accused struck the deceased in the head at the time of his encounter with the deceased, recorded by the video.

85. However, I am satisfied and find that the strikes at the accused took place in such a short space of time that I could not be satisfied that any separate intent accompanied the individual strikes and I do not reason from the fact of the first strike that the accused intended to strike the deceased in the head or indeed that he intended to strike any part of the deceased's body other than his abdomen.

86. To establish that the accused intended to kill the deceased, the prosecution sought to call in aid upon a number of matters. Firstly, it said that the accused was trained in crowd control and security activities. That was said to require a greater restraint in dealing with circumstances such as confronted the accused on this occasion. That restraint extended to coping with the risk of homophobic abuse because of the nature of the club as well as situations of possible assault on the club's security staff. This circumstance is then said to mean that the accused would have developed considerable animus against the deceased or all or any of the Islander males outside the club on that occasion to overcome that restraint. It was said that animus was shown by the accused because the deceased in the earlier part of the events at the doorway, seemed to be a leading protagonist of the Islanders in seeking to get into the club. The accused had shown his dislike and racism by his remark to Mr Street, "Why do all these black cunts have to be so stupid".

87. The prosecution's submission is that it is an inescapable inference from these matters that the accused sought to revenge himself upon a person he regarded as inferior for having the temerity to challenge the accused's authority. It is said that the accused did so by attacking the deceased and stabbing him in the stomach and head. The same submissions are made to support the alternative proposition that those acts were done with reckless indifference to the probability of causing the death of the deceased.

88. The intent relied upon by the prosecution must exist without there being a reasonable possibility that the accused acted in self-defence. As to that, the prosecution contended that the accused had not raised an issue of self-defence or, if it was an issue, then the prosecution had proved beyond reasonable doubt that the accused had no belief that it was necessary in defence of himself or anyone else to do what he did or that there were no reasonable grounds for forming such a belief.

89. Mr Buchanan put at the forefront of his submissions that the accused had not raised an issue of self-defence in the circumstances of this case. As I understand his point, the issue of self-defence requires there to be evidence that the accused acted in the way he did in the belief that it was necessary to do so in self-defence. This is a case where Mr Buchanan says that the accused gives no evidence in support of a claim of self-defence and accordingly there is no evidence of any belief held by the accused at the relevant time.

90. I was referred to R v Bonnick (1977) 66 Cr App R 266 where the Court of Appeal, Stephenson LJ, Milmo and Peter Pain JJ, were considering a trial judge's refusal to allow the defence to raise the question of self-defence in circumstances where the accused's case was that he was not the person involved. The court said (at 269):

When is evidence sufficient to raise an issue, for example, self-defence, fit to be left to a jury? The question is one for the trial judge to answer by applying common sense to the evidence in the particular case. We do not think it right to go further in this case than to state our view that self-defence should be left to the jury when there is evidence sufficiently strong to raise a prima facie case of self-defence if it is accepted. To invite the jury to consider self-defence upon evidence which doe not reach this standard would be to invite speculation. It is plain that there may be evidence of self-defence even though a defendant asserts that he was not present, and in so far as the judge told the jury the contrary, he was in error; but in the nature of things it would require to be fairly cogent evidence, when the best available witness disables himself by this alibi from supporting it.

91. Bonnick involved an attack with a penknife by a drunken and belligerent person on two persons who were waiting for a train. One of the victims, "put his hand to him (the accused)". The evidence of the other one of the victims was that as, a consequence, he intervened and his evidence was that the accused might have thought of that as an attack. That evidence was not confirmed by his fellow victim. The court held that there was not evidence from which an inference could be drawn that it was reasonably necessary for the accused to stab the victims at the time that they were stabbed.

92. As can be seen the facts in Bonnick are far removed from the situation that faced the accused in this case particularly in light of the physical attack by the deceased on him and the attack by Mr Faumuina on Mr Street at about the same time. This is a case where common sense requires that the issue of self-defence be considered.

93. Mr Buchanan also referred to the NSW Court of Criminal Appeal case of R v Youseff (1990) 50 A Crim R 1 where Hunt J, with whom Wood and Finlay JJ agreed, said (at 3):

That legal onus upon the Crown does not mean, however, that the Crown must bring evidence to meet every such "defence" which could possibly arise in relation to the offence charged. In every case, the accused bears an evidentiary onus to point to or to produce evidence (or material in an unsworn statement) from which it could be inferred that -- as I would prefer to put it -- there is at least a reasonable possibility that, for example, the act of the accused was accidental, or that it was provoked or done in self-defence: cf Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 at 168, 171.

The authorities make it dear that such a reasonable possibility must be shown by admissible evidence. Some English authorities put the evidentiary onus as high as requiring an inference to be available that the act of the accused was in fact accidental or provoked or done in self- defence or so on. Others, and most Australian authority, are (in my respectful view) more in accordance with principle and logic, when they say that there must be evidence from which it could be inferred that there is the reasonable possibility that the act of the accused was of such a nature. [Citations omitted]

94. The issue is one of whether, on the proven facts, there is a reasonable possibility that the accused acted in self-defence. It is not a matter that calls for a defendant to give evidence. Although Mr Buchanan submitted there was no evidence of the accused's belief that he acted in self-defence, I comment that the prosecution is to exclude the reasonable possibility that he did not do so.

95. I consider that there are inferences arising from the evidence before me which enable me to make findings involving that belief. The comment that Mr Buchanan suggests that I might make that "in addition to the evidence in the Crown case there is no evidence from the accused as to what his belief was", in my view runs the risk of weakening what was said by the High Court in Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217, at 228:

Even if there are facts peculiarly within the accused's knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them.

96. The prosecution submits that the accused's statements and his conduct do not support the possibility that he acted in self-defence.

97. Immediately after the event, he was asked what had happened by one of the police officers, Sergeant Harris. His response was, "I don't know, they attacked me." Mr Buchanan says that says nothing about the accused's belief at the time he struck the deceased. However, it does show the accused's perception that he saw the incident as an attack upon him and that at least lays the foundation for his response to it.

98. Mr Buchanan refers also to a similar question at that time from Peter Doree, a Cube employee who operated the karaoke machine. In response, the accused said, "I don't know, dude". That answer is consistent with observations of all those in Cube after the event who observed the accused. The accused had taken a heavy beating including being kicked in the head. It is hardly surprising that he did not know what had happened. It is not inconsistent with the possibility that he acted in self-defence.

99. When the accused was examined by Dr Melinda Ford at the hospital, he also said that he did not know what had happened. He was asked how he was hit in the head and he is reported as saying, "Someone came at me with a sandbag". Of course the accused was not hit by the sandbag (Ms McDougal's evidence to that effect may be discounted) but in the context of the accused not knowing what had happened, the response is again consistent with the accused apprehending that he was under attack.

100. These statements are consistent with the accused believing that he was under attack at the time and having no memory of the subsequent events. There is nothing in what the accused said to Jimmy Hardiman in the telephone call relied upon by the prosecution or what he said to Mr Street later about the deceased picking a fight with him that is inconsistent with that possibility.

101. The Islanders had returned to the doorway of Cube to dispute a remark passed by the accused to Mr Street. The prosecution says that the accused inflamed the situation by his remark to them when challenged, "Is that what I said, is that what you are?". There is no doubt that what the accused is said to have said has provocative overtones, displays arrogance and is a response which is antagonistic. It does not, in my view, alter the character of the situation. The group had returned spoiling for a fight. There was little that could be done or said that would contain the situation.

102. Suggestions from the prosecution that some placatory apology could have been made or that the grill door to Cube could have been shut ignore the reality of the situation at that time. An apology was unlikely to redress the grievance perceived. The shutting of the door was hardly practicable given the fact that the bolt lock required considerable manipulation to effect a satisfactory closure. It was, in fact, not until the deceased made his move outside the circle of protagonists and picked up the sandbag that there was any change in stance of the accused and Mr Street in the doorway. That action of picking up a sandbag resulted in the accused taking out of the back of his pants a knife which, at that stage, was folded. Having picked up the sandbag and pushing past those in the doorway, the deceased attacked the accused with it.

103. Notwithstanding the first strike with the sandbag, it was not until the second strike that the accused opened the blade of the knife. The deceased gathered himself for a third strike and at that time, Mr Faumuina struck Mr Street the heavy blow to his face. The force of that blow sent Mr Street reeling back into the passageway past and to the rear of the accused. There was at that stage, nowhere else for the accused to go other than stand his ground and face another strike from the deceased or to do what he did. What he did was to come forward to block the strike with is left arm.

104. Mr Buchanan suggested that the accused picked out the deceased because of the animosity the accused must have felt about him, his smaller stature and the fact that he had to move towards him. I do not draw that inference. The deceased was the immediate threat to the accused. Mr Street was under attack from Mr Faumuina and as the accused confronted the deceased, Mr Ahosivi is then seen to attempt to strike the accused.

105. At the time the accused came out of the doorway, there was every reason for the accused to believe that he and Mr Street were facing a situation where really serious injury or death might result to one or other of them. The deceased was the smallest of the Islanders but he was the one wielding an object and attempting to strike with it. It is not to the point that it was a bag which was no longer filled with sand as a result of the first strike. There was no real time for the accused to necessarily comprehend that circumstance and his movement out of the doorway is contemporaneous with his either grabbing at or warding off the object.

106. The prosecution placed emphasis on the character of the knife used in these circumstances. It is a flick knife where the blade opens by way of pressure applied to a button spring or device in the handle of the knife. As such, it is listed in the Schedule of prohibited weapons to the Prohibited Weapons Act 1996 (ACT). Mr Street gave evidence of its use by himself and the accused around the club. In that regard it was used for utilitarian purposes such as opening and cutting up boxes and removing wrapping. Mr Buchanan said that it was a "fighting knife", "designed for quick easy and effective use in combat". The blade is nine cm long and three cm wide for six cm of its length then tapering to a point. Four cm of the blade is serrated. The handle is eleven cm long. It has a clip on the side for attaching to a belt or clothing. Although the characteristic of it immediately springing open when the lever is pressed gives it an offensive quality, it is also a characteristic which allows one-handed use.

107. I am not prepared to attach the same significance to the knife's properties that Mr Buchanan would. I do not regard it as necessarily having the character of an offensive weapon sometimes used for other purposes. From the evidence given as to its general use, I regard the knife as having a more of a utilitarian aspect and I do not regard it as being carried by the accused for a "fighting" purpose.

108. I do not regard the accused having a knife of this kind for the purposes as explained by Mr Street as making it more likely that he did not have a belief that it was necessary to use it in self-defence or that such a belief was not reasonable.

109. Mr Buchanan directed my attention to the passage in Zecevic (supra at 663) where the court referred to an evidentiary matter to be considered in determining the issue of self-defence. The court went on to say:

A killing which is done in self-defence is done with justification or excuse and is not unlawful, though it be done with intent to kill or do grievous bodily harm. However, a person who kills with the intention of killing or of doing serious bodily harm can hardly believe on reasonable grounds that it is necessary to do so in order to defend himself unless he perceives a threat which calls for that response. A threat does not ordinarily call for that response unless it causes a reasonable apprehension on the part of that person of death or serious bodily harm. If the response of an accused goes beyond what he believed to be necessary to defend himself or if there were no reasonable grounds for a belief on his part that the response was necessary in defence of himself, then the occasion will not have been one which would support a plea of self-defence.

110. Mr Buchanan relied upon the comment that the accused made to Mr Street which must have been heard by Mr Ahosivi as he was the first to return to challenge the accused about it. That comment is said to make the accused the aggressor. However, I am not able to find that the comment was intended to be overheard. Mr Ahosivi was the last of the Islanders to turn away from the doorway at that time the confrontation seemed to be over. Mr Street's evidence was that the comment was directed to him and not to the Islanders. The accused's response when challenged as to what he had said was, "Is that what I said, is that what you are?". The original comment was grossly offensive and insulting but it was not directed to the Islanders and I am not satisfied that it was intended to be heard by them. The rejoinder was also arrogant and distasteful and presumably intended to annoy the person to whom it was said.

111. However, in the end, I cannot characterise from those comments of the accused as making the accused the aggressor in the situation. The dominating aggression was all from the other side. The response to the accused's comment to the Islanders according to Mr Street was a torrent of abusive and aggressive remarks. His evidence was:

Well, can you as best you can recall what was the effect of the words that they were saying, you heard them say?---"You're going to die, we're going to piss on you, you're fucked" and that's about all I recall.

112. The comments made by the Islander's at this time lasted for over a minute before the video shows the deceased move towards the tree from which he picks up the sandbag. The deceased was well to the outside of those making the abusive and threatening remarks and does not appear to be taking part in this confrontation. The video from camera 2 which shows the backs of the accused and Mr Street in the doorway. The stance of both of them appears relaxed and non-threatening during this tirade. It is not until the deceased picks up the sandbag that the accused reacts by removing the knife from the back of his jeans.

113. In my view, the accused has not provoked this attack upon himself by the deceased. It is said in Zecevic (at 664):

A person may not create a continuing situation of emergency and provoke a lawful attack upon himself and yet claim upon reasonable grounds the right to defend himself against that attack.

114. In R v Nguyen (1995) 36 NSWLR 397 in the NSW Court of Criminal Appeal, Priestley JA, with whom Smart and Ireland JJ agreed, observed (at 412):

Summarising what I have said earlier (and risking repetition in the hope of achieving a clear statement), the authorities support the view that the idea of self-defence depends on a person, attacked or threatened with attack, who does not want to fight, being unable, acting reasonably, to avoid fighting in self-defence. In such a situation the rules stated in Zecevic apply. But if the fact is that the person wants to fight, then questions of self-defence do not arise.

115. In the circumstances as I find them, I do not regard the accused as wanting to fight. The issue of self-defence is open to him.

116. This is a case where the prosecution has not established beyond reasonable doubt that the act of the accused which caused the death of the deceased was not done in self-defence. The prosecution have not satisfied me beyond reasonable doubt that the accused did not believe on reasonable grounds that it was necessary in self-defence to do what he did and that there were not reasonable grounds for such a belief to be held.

117. If the prosecution fails to discharge its onus in relation to self-defence as it applies to the charge of murder, that applies also to the possible alternative charge of manslaughter and to the charge inflicting grievous bodily harm.

118. I find the accused not guilty in respect of both charges on the indictment.

I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Counsel for the prosecution: Mr D Buchanan SC with Mr A Doig

Solicitor for the prosecution: ACT Director of Prosecutions

Date of hearing: 4 February 2008 - 21 February 2008