R v Rao [2008] ACTSC 17

R v Rao [2008] ACTSC 17 - ACTSC 2008 case summary — Zoe

[30]

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.

[42]

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 ...

[110]

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.

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