Evidence Act 2011 (ACT) s 184

[2016] ACTSC 14

CRIMINAL LAW - Trial by Judge Alone - particular offences - offences against the person - recklessly inflict grievous bodily harm - no reasonable basis for self defence - accused affected by alcohol - mental element proven - accused found guilty of the charge.

Evidence Act 2011 (ACT) s 184

1. On 29 September 2015, the accused, Kane Rheinberger, was arraigned on an indictment dated 25 February 2015 containing one count alleging that on 6 April 2014 he recklessly did inflict grievous bodily harm on Benjamin Sainsbury. To this charge he entered a plea of not guilty and the matter proceeded to trial on 29 September 2015. The accused had previously filed a notice electing the trial by judge alone, and accordingly his trial proceeded before me without a jury.

2. At this point it is convenient to set out some general principles which I must apply. The Crown has the onus of proving the accused guilty of the charge against him. The accused is not required to prove anything in this trial, and in particular he is not required to prove himself innocent. The Crown must prove each of the elements of the charge to the standard of beyond reasonable doubt, and if it fails to do so the accused must be acquitted. The accused did not give evidence during the trial, as was his right. The fact that he did not give evidence cannot be used as evidence of his guilt. It cannot be used in any way in support of the Crown case. He remains entitled to the presumption of innocence until such time as the Crown proves him guilty beyond reasonable doubt. The complainant, Benjamin Sainsbury, gave evidence by audiovisual link. I remind myself that I am not to give his evidence any greater or lesser weight because it was given in this manner. In addition, a support person was present in the remote witness room whilst Mr Sainsbury gave evidence. I also remind myself that I am not to give Mr Sainsbury's evidence any greater or lesser weight because of the presence of a support person in the remote witness room when Mr Sainsbury was giving evidence.

3. Although the accused was not required to prove anything in this trial, he did make admissions of fact pursuant to s 184 of the Evidence Act 2011 (ACT). A written document containing the admissions was tendered as Exhibit 1 at the trial, and in the following terms:

Pursuant to section 184 of the Evidence Act 2011 I, Kane Rhineberger, the accused, having been advised to do so by my counsel, admit the following matters of fact:

1. I was in the Belconnen Soccer Club McKellar during the afternoon and evening of 6 April 2014.

2. I am the person depicted in the CCTV footage (CCTV obtained from the Belconnen Soccer Club, recorded on the afternoon and evening of 6 April 2014) wearing a blue coloured T-shirt, multi-coloured shorts (red, white and blue) and thongs.

3. Around 7:37pm, I was near the poker machine area within the club.

4. The complainant sustained facial fractures, a black eye and an incised wound to the area surrounding his left eye.

4. Mr Sainsbury testified that he arrived at the Belconnen Soccer Club at about 5.30 pm on 6 April 2014. He was in the company of his wife, Bronwyn Sainsbury. At the club he was drinking schooners of Carlton beer. In evidence in chief he said that he was not 100 per cent certain how many beers he consumed that day, but thought that it was just over five. He described himself as tipsy. During the course of the afternoon and evening his wife complained to him that she was being harassed by a group of males in the club. She made this complaint to him on four or five occasions, and pointed out the group of males to him.

5. Mr Sainsbury said that he did not have any contact with this group of males until he spoke to one of them at the end of the evening. I am satisfied that the person that he spoke to was the accused. The accused left his group of friends and walked towards an outdoor smoking area, at which time Mr Sainsbury spoke to him in the area between the bar and the poker machines. He said to the accused: "It might start off as a bit of fun. This is my wife, you should leave her alone". He said that initially the conversation between him and the accused was not aggressive, however this changed when one of the accused's friends came over to join them. Initially, in his evidence in chief, Mr Sainsbury believed that two of the accused's party came over to where he was speaking to the accused, but when he was shown CCTV footage of the incident he agreed that only one of the accused's party had come to where he was talking to the accused. The other male who attended appeared to be agitated and angry. I am satisfied that this male was the accused's half brother, Luke Sadler.

6. Mr Sainsbury said that his wife was standing beside him while he spoke to the accused when Luke Sadler came up to where they were standing. He said that when Luke Sadler arrived, she grabbed his arm and said "Come on, let's just go". He looked at her, and at that point he was hit and fell to the floor. He said that when his wife spoke to him and he turned towards her, his hands were at his side. He did not see who hit him. After he fell to the floor, he remembered seeing a lot of feet and a lot of commotion. He was not 100 per cent sure whether he was knocked out. He wanted to get to his feet as quickly as he could. He stood up, and saw the accused and Luke Saddler moving away quickly.

7. As a consequence of the assault on him, Mr Sainsbury said that he suffered three fractures to his eye socket, a broken nose, a fractured cheek, chipped teeth and cuts. He said that he later had a plate inserted in his cheek. He was bleeding from his head, his eye, nose and mouth.

8. In cross examination Mr Sainsbury was asked whether he was certain that his hands were at his side just before he was hit, and he said that he believed they were. He said that after he was hit he was on the ground for a short period of time and he remembered wriggling a little bit to try to get up. He could not get up immediately. In cross examination he said that he did not recall feeling angry when he got to his feet, but agreed that he had told the police that he felt angry. He said that he could not remember how many times his wife had grabbed his arm before he was hit, but thought it may have been once or twice. He said that only about 10 seconds elapsed from the time Mr Saddler joined them until he was hit.

9. Mr Sainsbury agreed that as a consequence of his wife grabbing his right arm and pulling him away his right shoulder moved backwards and his left shoulder moved forwards. He denied having threatened to "punch" or "smash" the accused. He denied that his right fist was clenched just before he was hit. He also denied having raised his voice. He could not recall being kicked by anyone, but he saw a lot of feet while he was on the ground. He could not recall a foot making contact with his head, but he could not be certain. He agreed that he told a doctor at the hospital that he may have been kicked. He also told a doctor that he was "glassed" because another doctor told him that his injuries were consistent with having been struck by a glass.

10. Mr Sainsbury agreed that he may have told staff at the hospital that he had consumed 10, or more than 10, beers on 6 April 2014. He said that he did not believe that he had drunk as much as 10 beers, and thought that it was closer to 5 or 6, but he could not remember how many beers he had consumed.

11. It was suggested to Mr Sainsbury that before this incident, he had approached another group of males, one of whom had a carton of beer beside him. It was suggested that Mr Sainsbury said to the male with the carton of beer words to the effect of "I want one of those beers" or "I'm having one of those beers". Mr Sainsbury agreed that he had spoken to a man who had a carton of beer and had said to him, in a joking manner, "I'll have one of those beers".

12. Mr Sainsbury said that he thought that the accused had a cigarette in his hand as he was heading towards the smoking area. He was not able to recall, but he believed that the accused may also have been holding a glass of beer. The CCTV footage of the incident was played to Mr Sainsbury, after which he agreed that only Mr Saddler had come over to where he was speaking with the accused, and that he had been speaking to the accused and Mr Saddler for longer than the 10 second estimate he had previously given. He also agreed that he may have been mistaken about the accused having a glass in his hand.

13. Bronwyn Sainsbury is the wife of Ben Sainsbury and was with him at the Belconnen Soccer Club on 6 April 2014. She said that they arrived at about 4.30 to 4.45 pm. She was drinking bourbon and Coke, and her husband was drinking beer. She had four or five drinks that evening, and thought her husband probably had about four. She gave evidence of being harassed by a group of males seated at a table near the bar during that afternoon and evening. She said this occurred on five or six occasions. She said that she tried to ignore them, but at one point she did tell them to "fuck off". She testified that there were four males seated at the table, one of whom was about 6 foot tall, fairly broad shouldered and tattooed down one of his arms. I am satisfied that this describes the accused. One of the other males she described as stocky, with broad shoulders and reddish blondish hair. I am satisfied this is a description of Mr Saddler. On three or four occasions she told her husband that these males were harassing her.

14. Mrs Sainsbury said that she saw the accused leave the table where his three friends were sitting and walked towards the smoking area. She said that her husband approached him and said "Hey mate, you're giving my wife a bit of grief and she's asked you to leave her alone. I'm asking you to leave her alone. It might have been a bit of fun at the beginning but it's time to give it a rest". She described her husband's demeanour as calm at that time. She thought that her husband was holding a beer in his left hand at this time. She said that the accused was calm at first. He said that he had not been involved in harassing her, but it was his friends who were responsible. She said that the stocky, redheaded man came over and was quite aggressive, at which time the accused became aggressive as well. She said that the conversation then became a lot more aggressive, and her husband said "Well, you know, enough's enough. Leave her alone. I'm telling you now; I'm asking you to leave her alone". She said that she then said to her husband "Come on. Let's just go. Just leave it. Let's just go. Don't worry about it. Let's just go". She said that she said this about four or five times, and that she was holding on to his sleeve at the time. She testified that her husband turned to walk away, at which time he was punched to the face by the accused. She said that the punch landed on the cheek, nose and eye area on the left-hand side of her husband's face. Her husband fell to the ground, and the accused continued to punch him while he was on the ground. She was not sure how many times the accused punched her husband, but thought that it may have been six or seven. She said that her husband was unconscious on the ground.

15. Mrs Sainsbury said that she tried to push the accused away from her husband to stop him from hitting him, but the accused pushed her away. She said that the punches which the accused threw while her husband was on the ground hit him to the area of his head and face. She said that a lot of people then came in and broke up the incident. One of the staff took her and her husband to the front reception and an ambulance was called. There was a lot of blood on her husband's face.

16. In cross examination, Mrs Sainsbury agreed that the whole incident between her husband first being punched until it was broken up occurred very quickly, and in a very small space. She agreed that Mr Sadler was in the area when her husband was on the ground, but she could not recall whether he came up close to her husband at that time. She agreed that the incident was chaotic and that there were arms and legs going everywhere.

17. Mrs Sainsbury agreed that the accused had been reasonably calm while speaking to her husband until Mr Sadler joined them. She denied that her husband had made any sort of threat to the accused. She said that after Mr Sadler came over and joined the accused, voices became raised. She said that the argument involved the accused, her husband and Mr Sadler. She denied having spoken to the group of four men earlier in the evening and saying words to the effect of "How about I get my husband to punch you in the face?" Mrs Sainsbury agreed that she could be wrong about her evidence that her husband had a beer in his left hand when he was speaking to the accused. She did not believe that the accused was holding a beer, but recalled he was holding a cigarette.

18. Mrs Sainsbury agreed in cross examination that she spoke to police two days after this incident, and participated in a recorded interview during which she said that she did not see her husband being struck while he was on the ground. She said that at the time that she participated in that interview she was very tired and anxious. She said that it was her recollection that her husband had been struck while he was on the ground. She also recalled telling a doctor or nurse at the hospital that her husband had apparently been kicked in the head, because that was what someone said to her at the club. She also told the staff at the hospital that a glass may have been used in the assault on her husband, but that was also something she had been told by someone at the club.

19. Mrs Sainsbury rejected the proposition that her husband had threatened to "bash" or "smash" the accused before the accused struck him.

20. Aaron Dixon was one of the group of four males, including the accused, seated at the table near the bar in the Belconnen Soccer Club on 6 April 2014. He was a friend of Luke Sadler, another of the four males. He had known Luke Sadler for about seven years. He testified that the accused is the half brother of Luke Sadler. Mr Dixon arrived at the club about 4 pm and was drinking beer with the other members of the group. He said that the accused, by the time this incident occurred at about 6 pm, "wasn't like disorderly drunk or anything".

21. In cross examination, Mr Dixon agreed that the group of people with whom he was drinking, including the accused, were in a good mood on 6 April 2014. He said that on one occasion a lady approached the group, but he thought that she "just misheard something that was said".

22. Mr Hanson attended the Belconnen Soccer Club at about 6 pm on 6 April 2014. He said that he remembered "breaking up a fight". He was seated at a poker machine and "I saw a bloke go to the ground out of the corner of my eye, and then I saw another bloke hit him". When the male was on the ground he saw the other man hit him "a couple of times". I am satisfied that he saw the accused hit Mr Sainsbury. He said that the accused was "cranky", and told him that Mr Sainsbury had been harassing him "all day or all afternoon". He walked over to where the incident occurred and, to the best of his memory, believed that he restrained the accused. He said that he did not previously know either the accused or Mr Sainsbury.

23. In cross examination, Mr Hanson said that he had seen Mr Sainsbury at the club previously and "He's a bit of a smart arse in a way and that's about it, that's all I'm going to say". He said that when they picked up Mr Sainsbury from the floor he was "mouthing off" and that both Mr Sainsbury and the accused were angry.

24. Mr Massen was at the Belconnen Soccer Club with his wife on 6 April 2014. He consumed four or five Carlton mid-strength beers that evening. At about 7.30 pm he was playing on the poker machines when he heard raised voices immediately over his left shoulder. He turned around to see what was happening, and he saw a man with his back to him facing another taller man who was also facing towards Mr Massen. This was clearly the accused and Mr Sainsbury. He said that the accused appeared to push Mr Sainsbury to the floor, and that Mr Sainsbury landed on his back. The accused then straddled Mr Sainsbury and proceeded to hit him about three times. He said that the accused was hitting the left side of the face of Mr Sainsbury with his right fist. He described at least one of the blows as a "very, very forceful hit" which made a "big - like a hollow wooden drum sound". He said that there were a lot of people in the vicinity of where this occurred, some of whom were telling the accused to stop. He said that he and his wife left the club immediately afterwards, and they saw the accused and a couple of other males and the duty manager from the club walking outside. He said that he recalled the accused apologising, and then saying "If he had done it again I would've killed him", or words to that effect. He said that when Mr Sainsbury was on the ground he did not see anybody other than the accused make contact with him.

25. In cross examination, Mr Massen said that he had an unobstructed view of what occurred between the accused and Mr Sainsbury. He said that from his memory the accused ceased his attack of his own accord, and was not pulled off by anybody. He said that he heard raised voices before he saw Mr Sainsbury fall to the ground, but he could not say whether that was one voice or more than one voice. They were sufficiently loud however, to attract his attention.

26. Lynette Gill was the duty manager working at the Belconnen Soccer Club on the afternoon and evening of 6 April 2014. She knew Mr Sainsbury as a member of the club. She also knew Luke Sadler as a person who came into the club about once a month. She saw him at the club on 6 April 2014 in the company of two other males, who she had never seen before. She described one of those males as about 25 years old, about 5'8" tall, and wearing a purple and blue shirt and shorts with a horizontal stripe. I am satisfied that this was the accused. She said that she was out the back area of the bar when she heard yelling, and she ran out and saw the accused being restrained by three other members of the club, and Mr Sainsbury on the ground.

27. Ms Gill said that the demeanour of the accused was hostile and aggressive while he was being restrained by the other club members. He was being very abusive to Mr Sainsbury. She was concerned that the "fight" might continue if he remained in the club, so she directed him to leave. She said that she escorted him and Luke Sadler to the front door, during which she heard Luke Sadler say "He just wouldn't leave us alone, he said we were hassling his missus". The accused said that he was sorry, and that "the guy just wouldn't let up". She denied hearing the accused say words to the effect of "If he had done it again, I would've killed him".

28. Ms Gill said that she asked Mrs Sainsbury what had happened, so that an incident report could be completed. Ms Gill said that Mrs Sainsbury gave the following description of the incident:

So Bronwyn relayed to me that she'd gone to the female toilets, which is - she has to walk past the bar area to get there, and there are a lot of tables in that area, where people will need to walk past. So Luke Sadler and the tall male were sitting at those tables, and in Bronwyn's words, she told me that one of them had yelled out, "excuse me" and when she turned around, they had pretended that they had not said anything and had a little bit of a laugh.

Then she went to the toilet, and she came back to the table and asked them what they were playing at, and words to the effect, were they trying to give her a "hard time"? The tall gentleman had said "No, I was being an idiot. You can punch me in the face" and she said something else, in effect of "Oh, I think you are trying to give me a hard time". The tall male repeated "I'm just being an idiot, punch me in the face" and then I think Bronwyn said "How about I go get my husband, and he can punch you in the face?"

29. Dr Sansum provided a report dated 10 January 2015 based upon an examination of Mr Sainsbury at the Canberra Hospital in the early hours of 7 April 2014, and a review of hospital notes. Dr Sansum was provided with a history by Mrs Sainsbury, as Mr Sainsbury was in considerable distress and was quite drowsy from medication for analgesia. She took a history that Mr Sainsbury had been assaulted by one or more males at the Belconnen Soccer Club, and that he had been hit, fell to the ground and then kicked to the head. She noted that a glass may have been involved.

30. Dr Sansum noted that Mr Sainsbury was triaged as Code 3, meaning that his condition was potentially serious and it was assessed that he needed care within 30 minutes of arriving at hospital. He had a Glasgow coma score of 14, which indicated a slightly reduced level of consciousness. A general examination of Mr Sainsbury revealed marked left periorbital swelling and bruising, a 10 cm incised wound extending from the outer aspect of the left eyebrow, curving upwards and then down towards the inner aspect of the corner of the left eye, tenderness of the area around his nose, left eye and cheekbone and numbness of the upper left lip.

31. A review of the hospital documentation revealed that Mr Sainsbury had suffered the following injuries:

(a) A "blowout" fracture of the left orbital floor involving the left infraorbital canal, a 16 mm fragment of bone was displaced into the left maxillary antrum (sinus); there was extrusion of the infraorbital fat through this defect into the maxillary antrum.

(b) A displaced fracture of the left medial orbital wall and lamina papyracea, involving the nasolacrimal canal (tear duct).

(c) Fracture of the anterior (front) wall of the left maxillary sinus extending across the front of the sinus and involving the nasal spine.

(d) Fracture of the medial wall of the left maxillary sinus.

(e) Comminuted (multiple fragments), displaced, bilateral fractures of the nasal bones. The fracture of the left nasal bone extended into the ethmoid bone, through the frontal bone and into the left frontal sinus.

(c) Proptosis of the left eye (partial displacement of the eye out of the orbit).

32. As a result of these injuries, Mr Sainsbury was admitted to the Canberra Hospital. His facial wound was sutured, and he was reviewed by multiple specialist medical teams, including plastic surgery, ophthalmology and facio-maxillary surgery. He was readmitted to the Canberra Hospital on 14 April 2014 for open reduction and internal fixation of the fractures of the left orbit and maxillary sinus. Dr Sansum said that if the facial fractures had been left untreated, the possible consequences for Mr Sainsbury were ongoing infection of the sinus and the eyeball itself, as well as interference with the movement of his eye if the muscle became trapped. Dr Sansum said that the bones which were broken were strong bones, so the force required to break them, and to break them in the way in which they were broken, was quite considerable.

33. Dr Sansum opined that the facial fractures were occasioned by blunt force trauma, but that the 10 cm wound over Mr Sainsbury's left eye was an incised wound caused by a sharp object.

34. Luke Sadler gave evidence that he is the older brother of the accused, and that he and the accused arrived at the Belconnen Soccer Club at about 1 pm on 6 April 2014. He testified that he and the accused were drinking schooners of Carlton beer. Initially, he said that he could not remember where he was seated in the club, or how long he remained at the club. He said that he consumed between 15 and 20 schooners of beer, and that the accused consumed an equivalent amount of alcohol. In his evidence in chief he referred to an "incident" at the club that night, describing it as "it was an argument and we left kind of thing". He said that he had no idea how the argument started, but then gave a lengthy description of events which he said occurred in the period leading up to the incident.

35. Mr Sadler gave the following description of the events leading up to the physical altercation between the accused and Mr Sainsbury:

Yes, a person came over to the table beside us. So I'm there, yes. There was probably four or five old Yugoslavian blokes, or of that descent. He's come over and like - we were concentrating on the races and you could kind of hear like, "Effin' that. Dah, dah, dah." Didn't know what it was about really. Seen him go back over and out of the corner of my eye as you're kind of thing - you're going, "What was that about", and his missus has gone something like that, wrong table kind of thing, and didn't think too much more of it.

...

Yes, and as you're watching the races and I'm just going like that kind of thing, like wondering what it's about, and all of a sudden Kane's gone to go for a smoke, he said, "I'm going for a smoke". I don't think it was - I don't know if he heard the conversation beside the table or not, and he's gone that way and I've gone either to go to the TAB or I stayed there. He was going around and a bloke has come around from like a pokie tree kind of thing, and a bit of confrontation. Nothing too much, just like "Dah, dah, dah" and I've walked on and said "What's the go here", and (indistinct) said "Who the eff are you" and yes, went from there kind of thing. We've said, "Mate, no dramas. No trouble here". Kane said it two or three times "I don't want any dramas," and he went to kind of go like that and Kane has struck him...

36. At the end of the above description, Mr Sadler demonstrated the motion that he said Mr Sainsbury made before the accused struck him, which could be described as Mr Sainsbury moving his head forward about 2 inches. He described the right fist of Mr Sainsbury as clenched, but being held down at the level of Mr Sainsbury's leg.

37. Mr Sadler said that Mr Sainsbury appeared angry when this occurred, "like he was big dinner plates with eyes, like he was on drugs kind of thing". He said that both the accused and Mr Sainsbury engaged in a heated discussion before the accused struck Mr Sainsbury. He said that he saw the accused strike at Mr Sainsbury with his fist, towards his head area, but he was unable to see where that connected. He said that both the accused and Mr Sainsbury then fell on the floor, both of them landing on their backs. He said that people then came in and dragged them away. Mr Sadler said that he subsequently walked past Mr Sainsbury and said to him "You asked for that", and that Mr Sainsbury had to be held back from attacking him.

38. Mr Sadler said that he thought the accused only punched Mr Sainsbury twice, with both blows being delivered in rapid succession while Mr Sainsbury was standing. He said that after that occurred, both the accused and Mr Sainsbury fell to the floor and were lying on their backs. He did not see the accused throw any punches at Mr Sainsbury while Mr Sainsbury was on the ground, adding that it would been very difficult for the accused to punch Mr Sainsbury whilst he, the accused, was on the ground.

39. In cross examination the CCTV footage was played to Mr Sadler. He denied a suggestion from the accused's counsel that he had kicked Mr Sainsbury while Mr Sainsbury was on the ground. He also disputed the suggestion that the CCTV footage showed the accused punching Mr Sainsbury while he was on the ground, suggesting that the accused's arm movements, as shown in the footage, was an attempt by the accused to free himself from people trying to restrain him.

40. Mr Sadler said that he interpreted the slight forward movement of Mr Sainsbury's head prior to the accused hitting Mr Sainsbury as an aggressive gesture. He said that at that time Mr Sainsbury was making aggressive statements, swearing "and that kind of stuff".

41. Mr Sadler denied making any comments to any female at the club that afternoon. He described all of those members of his group present at the club as being in a good mood that afternoon.

42. Mr Doyle was at the Belconnen Soccer Club on the evening of 6 April 2014. He arrived at about 6.30 pm. During the evening he won two cases of beer in a raffle. He was seated at a table in front of the main bar, and had his feet propped up on the cases of beer. He said that a male approached him and "verballed that that beer that I had my feet on was his and that he was taking it home". He said that he formed the view that the male meant what he was saying. He said that a female then grabbed the man, dragged him away and called him something like "a fucking idiot". He then had a discussion with some men at the next table. He said "Do you guys know what that's about?" He said that "they" replied "Ah, he's just been causing shit all afternoon. It's not you. It's three or four or five or six different people".

43. Mr Doyle did not see the physical altercation between the accused and Mr Sainsbury, although later in the evening he shook the hand of "one of the guys" and said "well done" because "I thought that he had just gone and sorted the bloke out". In his evidence in chief Mr Doyle described Mr Sainsbury as "aggressive". He also said that before the physical altercation the group of men at the table next to him, which presumably was the group including the accused, were "jeering" each other up, and "filling one another up with bravado to go and get him, obviously".

44. In cross examination, Mr Doyle said that he described Mr Sainsbury as aggressive because Mr Sainsbury had threatened to take his beer away.

45. Mr McGlinn gave evidence via audiovisual link from Sydney. On 6 April 2014, he attended the Belconnen Soccer Club, and was part of the group which included the accused and Luke Sadler. He did not see the altercation between the accused and Mr Sainsbury, arriving at the scene of the altercation when "it was all over". He said that he saw people pushing and shoving when he arrived at the scene of the altercation, and that Luke Sadler was saying "There is nothing to see. It's all over". He said that he "would not have a clue" about the accused's mood after the altercation.

46. Constable Treloar attended the Canberra Hospital on 7 April 2014 and spoke to Mr Sainsbury. He subsequently obtained CCTV footage from the Belconnen Soccer Club.

47. On 6 April 2014, Mr Knobel was employed by the Belconnen Soccer Club. At about 7.30 pm he became aware that there was an altercation in the poker machine area of the club. By the time he attended, the altercation had finished and he saw "a large group of people trying to hold up the fight". He remembered seeing a redheaded man, and he recognised this person as someone who attended the club every couple of months. I am satisfied that this was Luke Saddler. He described the redheaded man as "very aggressive". He had seen that man drinking with a group of four or five friends earlier that evening at the club. He said that the whole of that group were in the area of the poker machines when he arrived after the altercation, and that "the whole group of them were yelling".

48. Mr Knobel also said that shortly after the altercation he spoke to a person with a Russian accent who told him that the "guy with the ginger hair" was involved in the altercation. In evidence in chief he could not recall exactly what the man with the Russian accent said the man with the ginger hair had done. In cross examination, he was taken to his police statement which he made on 9 April 2014, and he agreed that he had told police at that time that the man with the Russian accent told him that he had seen a male with ginger hair punch Mr Sainsbury in the head and stomp on his face.

49. CCTV footage obtained from the club was played in the prosecution case. The footage came from two cameras, one showing the bar area and the other looking towards the poker machine area. The footage from the bar area showed the beginning of the altercation, including the accused striking Mr Sainsbury. The footage from the camera directed towards the poker machine area showed some aspects of what occurred after the initial strike by the accused. I will refer to the contents of the CCTV footage in greater detail below.

50. In order to convict the accused of the charge against him, the Crown must prove beyond reasonable doubt:

(a) that the accused deliberately performed an act;

(b) that in performing that act he inflicted grievous bodily harm on Mr Sainsbury; and

(c) that at the time he performed the act he foresaw the possibility that Mr Sainsbury might suffer grievous bodily harm.

51. I found Mr Sainsbury to be a credible witness, albeit that he was clearly confused on matters of detail, such as how many drinks he had consumed on 6 April 2014, and how long he spent talking to the accused and Mr Saddler before he was struck. He was also clearly wrong in his initial recollection that others besides Mr Saddler joined the accused before he, Mr Sainsbury, was struck. These appear to me to be matters of detail, explicable by the passage of time, Mr Sainsbury's intoxication on the evening and the injuries he sustained. These errors of detail do not cause me to doubt the essential truthfulness of Mr Sainsbury's evidence.

52. I also found Mrs Sainsbury to be a credible witness. I accept her evidence that she was harassed by members of the accused's group of friends at the club on 6 April 2014, on a number of occasions, and that she told her husband of this harassment. I accept that Mrs Sainsbury did, at some point during the evening, say to the accused, or one of the group he was with that day, words to the effect of "How about I go and get my husband, and he can punch you in the face". It is probable that she was affected by alcohol at the time and no longer recollects that conversation. The evidence of Mrs Sainsbury concerning the essential events on 6 April 2014 was substantially corroborated by independent witnesses and the CCTV footage. I accept her evidence on the essential particulars of how the physical altercation in which the accused struck Mr Sainsbury occurred.

53. Aaron Dixon gave limited evidence. I found it difficult to believe that he could have been unaware of the harassment of Mrs Sainsbury, but it is possible that it was confined to others in his group.

54. I found Craig Hanson to be a credible witness. He did not know either the accused or Mr Sainsbury before this incident, although he had seen Mr Sainsbury in the club on other occasions before this incident. I ignore as irrelevant his opinion that Mr Sainsbury is "a bit of a smart arse". What is important from Mr Hanson's evidence is that he saw the accused hit Mr Sainsbury "a couple of times" while Mr Sainsbury was on the floor, and he did not see anyone else hit or kick Mr Sainsbury while he was on the floor.

55. I found Peter Masson to be an impressive and credible witness. He was an independent witness who had an unobstructed view of the incident. I have no hesitation in accepting his evidence of what occurred during the physical altercation itself. To the extent that his evidence about the accused saying "If he had done it again I would've killed him" as he left the club is not supported by Lynette Gill, it is unnecessary to decide the issue, because it occurred well after the event, and is simply consistent with the accused being angry, which is not inconsistent with him having acted in self defence. In any event, it is possible that Ms Gill simply did not hear this comment by the accused; the fact that she did not hear this comment does not cause me to doubt the credibility of Mr Masson's account of the physical altercation.

56. I found Lynette Gill to be a credible and impressive witness, and I accept her evidence. She was an independent witness, unaffected by alcohol on 6 April 2014. Based on her evidence I am satisfied that Mrs Sainsbury had a conversation with the accused, or another of his group on 6 April 2014 concerning their harassment of her in which she was invited to punch the accused or another of the group. I am satisfied that she replied "How about I go and get my husband, and he can punch you in the face". Whilst this conversation was clearly not light-hearted, I have no doubt that the questioner did not really expect that Mrs Sainsbury would punch him, and nor did Mrs Sainsbury intend inviting her husband to punch him. There is no evidence that Mrs Sainsbury asked Mr Sainsbury to punch anyone. In fact, it is abundantly clear from the CCTV footage that when Mr Sainsbury approached the accused he spent a considerable amount of time talking to him before the accused hit him. It was also common ground that Mrs Sainsbury encouraged Mr Sainsbury to walk away from the accused. This is not particularly consistent with a picture of him approaching the accused at the behest of Mrs Sainsbury with the intention of punching the accused.

57. I have no difficulty, of course, in accepting the evidence of Dr Sansum. Her evidence that the 10 cm incised wound over the eye of Mr Sainsbury was caused by a sharp object is problematic, as there is no clear evidence that either the accused or Mr Sainsbury were carrying a glass at the time of the altercation, or that there was broken glass or some other object at the scene that could have caused such a wound. The fact that the wound was an incised wound does not provide support for the proposition that Mr Saddler kicked the head of Mr Sainsbury while he was on the ground, as that action would not explain an incised wound.

58. It is obvious that Mr Sainsbury suffered the incised wound during the physical altercation at the club on 6 April 2014. It is likely that the wound was caused by broken glass, there being no suggestion that some implement such as a knife was used. It is possible that this occurred accidentally during the short melee after Mr Sainsbury was knocked to the ground and while other patrons moved in and tried to pull the accused away. In any event, I am not satisfied that the accused caused the 10 cm incised wound to Mr Sainsbury.

59. I found Luke Saddler to be a most unsatisfactory witness. He initially claimed to have little memory of some events, but then provided fairly detailed description of other parts of the incident. On his own version of events he had consumed a large quantity of alcohol that day, and must have been quite intoxicated. Mr Saddler gave gratuitous evidence suggesting that Mr Sainsbury may have been affected by drugs, an observation not supported by any other witness, and which finds no support in the medical evidence. Mr Saddler also testified that both the accused and Mr Sainsbury fell to the ground and onto their backs after the accused swung the first punch at Mr Sainsbury. This is not supported by any other witness, and is contradicted by the CCTV footage. Even after he was shown the CCTV footage, which shows the accused engaged in an apparently vigorous punching action directed towards something at his feet, Mr Saddler still disputed the proposition that the accused was punching something or someone, suggesting that he was trying to free himself from people trying to restrain him. An inspection of the CCTV footage establishes that this suggestion is nonsense. I do not accept Mr Saddler as a truthful witness.

60. I found Finian Doyle to be an unsatisfactory witness, prone to providing opinion and commentary rather than giving a factual account of events. Much of what he said concerning Mr Sainsbury was hearsay. I also give no weight to his evidence the accused and other members of his group were "jeering" each other up before the altercation. Mr Doyle gave no evidence of what he saw or heard that led him to this conclusion.

61. The evidence given by Timothy McGlynn was not particularly useful, as he claimed not to have seen the physical altercation and what preceded it. I do not, however, accept his evidence that when he came to the scene of the altercation after it had concluded, Mr Saddler was trying to calm matters down. This is inconsistent with the evidence of the independent witness, Jack Knobel, who described Mr Saddler at that point as "very aggressive".

62. I found Jack Knobel to be a credible and impressive witness, and I have no hesitation in accepting his evidence. I give no weight, however, to the accusation made by the man with the Russian accent, as reported by Mr Knobel, that the "guy with the ginger hair" (who I am satisfied was Luke Saddler) was involved in the altercation by punching and stomping on Mr Sainsbury's head. Whilst the man with the Russian accent purported to have seen what he described to Mr Knobel, it is impossible to be sure that he was purporting to describe what he saw, or was repeating what others told him. I note that the accusation that Mr Saddler punched Mr Sainsbury and then stomped on the head of Mr Sainsbury was not supported by the independent eye witnesses.

63. I examined the CCTV footage in great detail, and on numerous occasions, including using a magnifying glass to identify and observe the movements of Mr Sainsbury's head prior to him being punched by the accused. I can identify no threatening movement by Mr Sainsbury preceding the accused punching him. I also observed Mr Sainsbury's hands remained at rest by his side up to the point where the accused hit him. The movement of Mr Sainsbury's head alleged by Mr Saddler was very small, amounting to a forward movement of about two inches, so it is possible that this movement, if it occurred, may not have been obvious on the long distance CCTV footage. As such, I do not consider the CCTV footage rules out the possibility that Mr Sainsbury's head moved slightly forward as alleged by Mr Sainsbury.

64. Having said that, I do not accept the evidence of Mr Saddler on this issue. Mr Saddler was not a disinterested witness, and as I have already pointed out he was at pains in his evidence to denigrate Mr Sainsbury and to excuse the conduct of his brother. The only evidence of the alleged head movement by Mr Sainsbury prior to the accused punching him came from Mr Saddler, and he was an unreliable witness.

(a) on 6 April 2014 the accused was drinking with three of his friends at the Belconnen Soccer Club;

(b) on a number of occasions that afternoon and early evening members of the group which included the accused harassed Mrs Sainsbury;

(c) at about 7.30 pm the accused left the group and walked towards an outdoor smoking area. He was approached by Mr Sainsbury who complained of the harassment of his wife, and asked that it cease;

(d) the conversation between the accused and Mr Sainsbury was calm until Mr Saddler approached and joined in, at which time the accused became more aggressive;

(e) Mrs Sainsbury took hold of the arm of Mr Sainsbury and suggested that they leave on a number of occasions;

(f) as Mr Sainsbury turned towards his wife intending to leave, the accused punched Mr Sainsbury to the head, causing him to fall to the ground;

(g) while Mr Sainsbury was on the ground, the accused punched him to the head several times with considerable force. It is probable that Mr Sainsbury lost consciousness for a period; and

(h) these blows to Mr Sainsbury's head delivered by the accused caused the multiple facial fractures and other injuries described by Dr Sansum, with the exception of the 10 cm incised wound extending from the outer aspect of Mr Sainsbury's left eyebrow.

66. I am satisfied, based on the evidence of Mr and Mrs Sainsbury, that Mr Sainsbury did not make any verbal threats to the accused, or in any other way provoke the accused before the accused struck him. There is some evidence that Mr Sainsbury may have behaved in a somewhat annoying manner on occasions at the club on 6 April 2014, but the evidence does not support the proposition that he was aggressive, or that his conduct was such as to bring him to the attention of club staff.

67. I am satisfied that the accused was affected by alcohol on 6 April 2014 when he struck Mr Sainsbury, but it is difficult to determine to what degree. Mr Saddler said that the accused had consumed about 15 to 20 schooners of beer, but on the other hand Aaron Dixon said that the accused was not "disorderly drunk" on that day. The evidence of Mr Saddler, however, was so unreliable that I place no weight on this aspect of his account. There was no evidence to suggest that the accused was significantly affected by the alcohol he consumed on 6 April 2014. None of the witnesses who saw or spoke to the accused that day suggested he was heavily affected by alcohol, and his movements, as depicted in the CCTV footage, do not support such a proposition.

68. In any event, the facts that I have found proven convince me beyond reasonable doubt that the accused did not believe it was necessary to punch Mr Sainsbury as he did, thereby knocking him to the floor, in order to protect himself. I am satisfied that no matter how intoxicated the accused was, he did not believe it was necessary to punch Mr Sainsbury in order to protect himself. Even were I to be wrong in that regard, there was no reasonable basis for the accused to have formed that belief. As such, I am satisfied that the Crown has disproved self defence with respect to the first blow struck by the accused.

69. What I have said above applies a fortiori to the blows delivered by the accused to Mr Sainsbury while Mr Sainsbury was lying helpless on the floor.

70. I am satisfied beyond reasonable doubt that at no time during the attack on Mr Sainsbury was the accused acting in self defence.

71. I am satisfied beyond reasonable doubt that the injuries inflicted by the accused on Mr Sainsbury constitute grievous bodily harm in the sense that they amounted to really serious bodily harm.

72. Turning to the mental element required of the accused, the Crown must establish that at the time he delivered the blows to Mr Sainsbury that caused the grievous bodily harm, the accused was aware of the possibility that his actions may cause grievous bodily harm. Having regard to the CCTV footage, and in particular that from the camera facing the poker machine area, I have no doubt that the accused was aware that his actions may cause really serious harm to Mr Sainsbury. The attack on Mr Sainsbury was violent, and the punches delivered by the accused while Mr Sainsbury was helpless on the floor were delivered with considerable force. Even allowing for the fact that the accused was intoxicated to some degree, I am satisfied that he was aware that these blows may cause Mr Sainsbury really serious injury, as they did.

73. I therefore find the accused guilty of the charge.

I certify that the preceding seventy-three [73] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.