R v TALIMALIE; R v LEAVAI; R v JL

Facts

Because of a substantial number of issues arising out of submissions at the sentence hearing it will be necessary for me to comprehensively review the evidence at the trial and make findings as to the facts. However, in order to make what follows more comprehensible I note that the Crown case is that the three offenders were at the intersection of Boorowa and Main Streets in Young in the early hours of the morning of 1 October 2017. There was an incident between Timothy Norman and Harriett Pettit. It was the Crown case at the trial that the three offenders then without provocation violently assaulted Timothy Norman, such assault including kicking or stomping on him while he was on the ground. Mr Norman sustained fractures to his jaw and skull amongst other injuries.
It was alleged that a group of people of whom Coedie Freeman was one was also in the near vicinity when the assault on Timothy Norman commenced and Mr Freeman intervened to assist Timothy Norman. Mr Freeman sustained a number of injuries giving rise to the charge contrary to s 59(2) of the Crimes Act. It was further alleged that there was an Affray wherein the offenders behaved in a violent fashion to the group of people who are nominated in the indictment.
The matters arise out of an incident that occurred in Main Street, Young not far from the intersection of Main and Boorowa Streets in Young in the early hours of the morning of 1 October 2017. Boorowa Street is the main street of the Young township.
Boorowa Street runs generally east-west and Main Street runs generally north-south. At the north-eastern corner of the intersection is an IGA supermarket. On the south-eastern corner is Raine and Horne real estate agency. On the north-western corner is the Commercial Hotel, which does not feature in this matter other than by way of landmark. The RSL Club is to the south and slightly to the west of the intersection. The incident that gives rise to the matters presently under consideration occurred on the eastern side of Main Street south of the intersection of Boorowa and Main Streets. Along the footpath adjacent to the gutter in Main Street south of the intersection is bushes or hedging that in effect prevent pedestrians crossing other than at the designated crossing. Also south of the intersection on the footpath on the eastern side of Main Street is (or at least there was) a public telephone and some type of utility box.
The three offenders had been at a 50th birthday party for Sue Pettit that had been held at the local RSL Club. Sue Pettit is the mother of Ellie-May and Harriet Pettit who were witnesses and who had also been at the party. It was not in dispute that the three offenders had been at that birthday party and further it was not in dispute that each of them including JL (the juvenile) had consumed liquor. At the same time at the RSL Club there was an end of season function for the Burrangong Bears Women's League Tag Team - as I understand it a touch football team.
The three offenders left the RSL Club at some point and shortly before the incident out of which this matter arises were at a park bench at or very near the intersection of Boorowa and Main Streets in Young. A number of persons who had been in attendance at the end of season function left the RSL Club and went to a nearby hotel. The group of them were also at or near the intersection of Boorowa and Main Streets.
So far as I can determine what I have just stated about the location is uncontroversial. That however, is also as I understand it where any agreement between the parties as to the facts of the matter comes to an end. As indicated earlier in these reasons there is even a dispute as to the principles that I should apply to determine the facts for the purposes of sentence.
Gleeson CJ, Gaudron, Hayne & Callinan JJ in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] said: "As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey - that a sentencing judge 'may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.'" R v Storey is reported at [1998] 1 VR 359.
At paragraph 4 of his written submissions on sentence Mr Michie on behalf of JL puts: "As the jury returned guilty verdicts it is for the duty of the judge to form his view of the relevant facts based on evidence admitted during the trial and in the proceedings on sentence subject to the following constraints: (a) Such view must not conflict with the jury's verdicts, and (b) The facts against the offender must be found beyond reasonable doubt; and (c) Because any reasonable doubt must be resolved in favour of the offender the judge is required to sentence him on the basis of the facts which are most favourable to him."
The submission cites as authority for these propositions is Cheung v The Queen (2001) 209 CLR 1 at [14] per Gleeson CJ, Gummow & Hayne JJ and at [163]-[165] per Callinan J.
It is instructive to go to the decision of Cheung v The Queen. At [14] in their joint judgment Gleeson CJ, Gummow & Hayne JJ said: "In Isaacs the Court of Criminal Appeal summarized certain well-established principles concerning the law and practice of sentencing in New South Wales as follows[11] (omitting references to authority): '1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury ... 2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. ... 3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. ... 4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt. 5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. ... However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. ... '"
Even accepting what counsel for JL submits it seems to me that the statement that because any reasonable doubt must be resolved in favour of the offender, the judge is required to sentence him on the basis of facts which are most favourable to him should be read with the words "according to the evidence" immediately following. It cannot be that a sentencing court is obliged to find the facts in order to proceed to sentence as an offender submits they ought to be.
There is of course the more recent decision of Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29. In that decision French CJ, Bell, Keane & Nettle JJ said at [64]: "But, as was established in R v Olbrich, a sentencing judge may not take facts into account in a way that is adverse to an offender unless those facts have been established beyond reasonable doubt and, contrastingly, the offender bears the burden of proving on the balance of probabilities matters which are submitted in his or her favour. Where, therefore, the prosecution fails to prove a fact or circumstance which is adverse to the offender, but the judge is not satisfied on the balance of probabilities of an alternative version more favourable to the offender, the judge is not bound to sentence the offender on a basis which accepts the accuracy of the more favourable version. If the prosecution fails to prove beyond reasonable doubt a possible circumstance of the offending which, if proved, would be adverse to the offender but the offender fails to establish on the balance of probabilities a competing possibility which, if proved, would be favourable to the offender, the judge may proceed to sentence the offender on the basis that neither of the competing possibilities is known. As was stated by the majority in Olbrich: '[W]e reject the contention that a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt. The incongruities that would result if this submission were accepted are well illustrated by the present case. The respondent swore that he was a courier but the judge disbelieved him. To require the judge to sentence the respondent on the basis that he was a courier is incongruous.'"
Their Honours went on to say at [70]: "Certainly, a sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability. Even so, it is sometimes not possible for the judge to ascertain everything which is relevant, especially where an offender chooses not to offer any evidence on the plea. Where that occurs, the judge must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard. As was stated in Weininger v The Queen: 'The sentencing judge may not be able to make findings about all matters that may go to describe [the] circumstances. In particular, an offender may urge a particular view of the nature and circumstances of the offence, favourable to the offender. The sentencing judge may be unpersuaded that the view urged is, more probably than not, an accurate view of the circumstances. In such a case, it is not correct that the judge is bound to sentence the offender on that favourable basis, unless the prosecution proves the contrary beyond reasonable doubt. Accordingly, in the particular facts of Olbrich, where the offender asserted that he was no more than a courier of the drugs, but the sentencing judge disbelieved him, it was neither necessary nor appropriate to sentence him on the basis that he was a courier.'"
That accords with the requirements in s 21A(1) of the Crimes (Sentencing Procedure) Act, 1999 that facts be taken into account only in so far as they are "known to the court" according to the principles of proof laid down in Olbrich.
Further, none of the counsel made any submissions about the decision of the High Court of Australia in Strbak v The Queen (2020) 94 ALJR 374; [2020] HCA 10. In that decision the Court (Kiefel CJ, Bell, Keane, Nettle & Edelman JJ) said at [13]: "When sentencing an offender where there is a dispute as to the facts constituting the offence, the judge should not draw an adverse inference by reason of the offender's failure to give evidence save in the rare and exceptional circumstances explained in the joint reasons in Azzopardi v The Queen[10]. It follows that the appeal must be allowed, the appellant's sentence quashed and the matter remitted to the Trial Division of the Supreme Court of Queensland for the appellant to be sentenced according to law."
I will need to determine the facts beyond reasonable doubt on the evidence that was presented at trial. None of the offenders gave evidence at the trial or at the sentence hearing. Talimalie and Leavai gave records of interview to investigating police which were tendered in the Crown case at trial.
No counsel made any submissions on the decision of Fillipou. In the course of preparation of these reasons I had my Associate communicate with each of the parties reminding them of the decision and indicating that I would be prepared to accept any further written submissions up to a specified date. Mr Michie on behalf of JL and Mr McColm on behalf of Leavai both provided further written submissions by the specified date.
One example of the complexity of the issues with which I am faced in this matter is that Mr Michie for JL goes on to submit at para 5 of his submissions (MFI 2 on sentence) that, "…and the fact that the jury was directed that it could accept some and not all of the evidence relied upon by the Crown, the judge could not be satisfied beyond reasonable doubt that the offence of Grievous Bodily Harm with Intent was committed without provocation (as was suggested by the Crown) or whether the jury rejected the offender's claim that they were acting in self-defence".
Whether the victim Timothy Norman was responsible for some type of provocation is something that I will need to determine. Provocation is a mitigating factor provided for within s 21A(3)(c) of the Crimes (Sentencing Procedure) Act and therefore following the decision of Olbrich it is something for the offender(s) to prove on the balance or probabilities rather than the Crown having to negative beyond reasonable doubt.
It is not helpful in the task that I have to undertake to make findings on the facts that there also appears in the submissions of counsel to be some "cross-over" of the issues of provocation and self-defence and defence of another. As I read the supplementary submissions of Mr Michie he appears - at least on my reading of his supplementary submissions - that what was relied upon as self-defence also amounts to provocation. I was of the understanding that some type of incident between Timothy Norman and Harriett Pettit was relied upon as provocation and the alleged actions of Timothy Norman in punching Talimalie was relied upon as self-defence or defence of another. However, I will need to deal with the issue of whether the incident between the offenders and Timothy Norman also involves provocation on the part of Timothy Norman.
Mr Michie in his supplementary submissions appears to seek to make some distinction in matters where there is a dispute on the facts after a plea of guilty and where there is a verdict of guilty after trial. It seems to me that it is of really no consequence as the principles would need to be applied by the sentencing judge in determining the factual dispute regardless of how that dispute arises.
I now return to the facts themselves. It is uncontroversial that on the night of 30 September 2017 Timothy Norman the victim of the Grievous Bodily Harm with Intent charge was at the Young RSL Club. He was not attending either the Sue Pettit's 50th birthday party or the football club's end of season function. Coedie Freeman, the victim of the charge of Assault Occasioning Actual Bodily Harm in Company was one of the people attending the football club's function. Late in the night of 30 September 2017 a number of persons including a number of the witnesses who gave evidence at the trial went from the RSL Club to the Australian Hotel (referred to in some instances as "The Aussie"). A number of persons left the Australian Hotel with the intention of going to the Criterion Hotel (sometimes referred to as "The Cri"). That hotel was closed. That left a group of people in the vicinity of the intersection of Boorowa and Main Streets in Young. It seems that it is uncontroversial that the three offenders were together in each other's company at or at least near a park bench at the intersection before the incident giving rise to the charges occurred.
Ellie-May Pettit had been at her mother's birthday party and spoke to Timothy Norman a number of times during the night (p 35:23). At one stage of the evening she saw the offender Anzac Leavai talking to Timothy Norman about football (pp 35-6). Timothy Norman and a friend Rhett Freeman left the club to go to the Australian Hotel but they returned. Timothy Norman again left the RSL Club and was intending to walk with Ellie-May Pettit to the Australian Hotel. Ellie-May received a call from her sister Harriett indicating that the Australian Hotel was closed. Ellie-May Pettit and Timothy Norman decided to walk back towards the RSL Club. Ellie-May Pettit was planning to go to her home which was beyond the RSL and Timothy Norman was planning to meet up with Mr Rhett Foreman, presumably at the RSL Club.
On the way to the RSL Club Ellie-May Pettit went some five or six metres down a laneway in order to go to the toilet. She and Timothy Norman continued to talk. Timothy Norman raised the subject of Ellie-May's child, the father of whom is his brother Daniel.
While this conversation was going on Harriett Pettit arrived at the scene in a vehicle, got out and began speaking to Timothy Norman telling him that her sister's child was an inappropriate subject for the time. Harriett Pettit told Norman that the conversation was inappropriate and he should leave. The following appears at pp 39-40 of the trial transcript: Q. Did Tim say anything? A. After Harriett said that she turned her back to walk away. He lifted his ‑ like, lifted his hand to tell her stop, you've like entered the conversation at the wrong time and she said, "No, you should leave". So he like reached out to tell her, no, she should stop but she was a bit far away. She was walking back. Q. When you say he raised his arm? A. Like, stop, stop, like that.
Under cross-examination at p 62:22 Ellie-May Pettit said that her sister was speaking to Timothy Norman in a stern voice. She was not shouting or yelling. She confirmed in cross-examination (e.g. p 62:47) that Harriett was telling him to leave. Harriett gestured indicating the direction he should leave (p 63:1). Ellie-May Pettit gives no evidence from which a conclusion could be drawn that Timothy Norman was being aggressive or violent towards her or her sister. Counsel, in particular Mr Michie for the offender JL seem to place some particular store on the evidence that Ellie-May Pettit was speaking to Mr Norman in a stern voice. Whilst a stern voice was used the evidence was also that she was not yelling or shouting.
Further, I note the evidence in chief of Ellie-May Pettit as to what happened with her sister at commencing at p 40:18: Q. When you say two of the boys, who were they? A. Anzac and Ray. Q. Where had they been before walking? A. They were waiting for Harriett at the top of the corner at Raine & Horne. Q. When did you first see that they were there? A. When the ruckus broke out. When Harriett hit the ground. Q. Who pushed Harriett? A. I don't know. I could not give you an honest answer of who pushed Harriett. Q. When it started were you still in the lane? A. Yes, I was still in the lane. Q. When you came out of the lane what was the first thing you saw? A. Harriett on the ground. Q. Where was Tim? A. Sorry, I think I need to just backtrack for a minute. I seen Harriett here, I and Timmy, Harriett and then the two boys and then I just seen Harriett hit the ground. I don't know who pushed her. And then I seen Harriett hit the ground and then the ruckus broke out and everything happened very quick.
Mr McColm provided supplementary written submissions which mostly consist of extracts from the evidence at the trial, some of which has already been extracted with a concluding submission that I should find on balance that Anzac Leavai struck the victim Norman after he, Norman hit his brother and that that was an act that is defence of his brother and/or as a result of provocation.
This is a further example of complexity created by the submissions of counsel. Provocation is a mitigating factor and must be proved on balance whereas the Crown has to negative self-defence (or defence of another) beyond reasonable doubt.
However, one extract from the evidence Mr McColm relies upon is what appears at p. 49:04 in that: Q: Who was arguing? A: It was mostly the only person I could hear arguing was Harriett telling him to go and his saying that it was okay. I don't really remember any other conversation than that, then it was when the ruckus started and all - like, there was a big group of people come and they were trying to break things up and Harriett was trying to break things up.
Mr McColm then submits that the evidence of Harriett Pettit does not contradict the account given by Anzac Leavai in his record of interview. It is not a case of there not being a contradiction but what facts are established beyond reasonable doubt on the whole of the evidence.
Harriett Pettit gave evidence but her evidence did not advance the matter in any material way. She had been the partner of the offender Talimalie for some time and made a statement only a short time before the trial commenced. She and the offender Talimalie had been at the birthday party and were both intoxicated (p 79:42). She gave the following evidence at trial (commencing p 82:12): Q. Sorry, just one step at a time. When you saw your sister and Timmy, that's Timothy Norman? A. Yes. Q. Where were they? A. Like, they would have been around about near the Chinese restaurant, somewhere in between there yeah, there. Q. What did you do when you saw them? A. We pulled over or Emma pulled over and let me out, or I got out of the car and then I walked down and I just basically told Timmy to leave. Q. When you walked down and told him to leave, what were they doing? A. They were just talking, I think. I don't exactly know what they were doing. Q. How did you tell him to leave? What did you say? A. Excuse my language, sorry, but I just said, "Fuck off", like, "Go away. I don't want you here, I don't want you talking to us, go". Q. What was the next thing that happened? A. Basically I don't know where Ellie was but he was just like trying to justify what they were talking about. I didn't really care for that at the time; I didn't have any need to know. Q. When you say he was trying to justify, what did he say to you? A. I think he was just telling me to listen to him. I don't remember, but from what I can remember I just think he was trying to tell me what he was talking to Ellie about and all that kind of stuff. It just basically was because of my sister's child and I just didn't want to do it. That child is my world and I didn't want to sit there and talk about that with him. Q. When you were saying to Tim to leave, where was Ellie? A. I don't know. I don't know. She had walked into an alleyway, I think. I'm not 100% sure. Q. What happened then? You're telling Tim to, "Fuck off". A. He was like kind of following me, I think, and I was walking back up towards Ray and Anzac and Jack and then Q. Just stopping you there, when you say walking up towards Ray, Anzac and Jack, where were they? A. They were waiting for me at Raine & Horne.
Her evidence continued commencing at p 83:16: Q. What happened then? You started walking toward them. A. Yeah, and then I think that they like, Timmy kind of followed me and then he was just telling me that he was going to the club, I think, and then the boys must have seen it and they come down to me and then, yeah. Q. When you say they had to come down to you, how far did they have to come? A. I don't know. Q. What happened when they got there? A. I just told everyone to leave. I could just feel like I just had a really bad feeling in my stomach, like, and I just told everyone to leave and I just and then, I don't know, like and then I just I don't I don't know. Q. When you were telling everyone to leave, who were telling to leave? A. Ray and Anzac they had got to me, I think and Timmy. Q. When Ray and Anzac got to you, where was Timmy? A. Behind me. Q. How far? A. I'm not sure because I was walking away from him. Q. What happened then? A. And then basically I think things just got heated. I don't know; I just like basically the next thing I remember is just trying to pull everyone apart.
The Crown made a successful application pursuant to s 38 of the Evidence Act, 1995 in respect of Harriett Pettit. At p 93:30 and following she said: Q. You were speaking to Tim Norman, telling him to leave effectively? A. Yeah. Q. Then you walked back toward the bench at the corner of Boorowa Street? A. Yeah. Q. How far back toward the bench did you get before you were met by the three accused? A. I don't I don't know. I can't recall, sorry.
Under cross-examination to Mr Keller who appeared for the offender Talimalie the following appears commencing at p 99:18: Q. At the time that you were between Ray and Mr Norman, were you telling Mr Norman to go away, back towards the Young services club, do you remember that? A. I was just telling I would think I was telling everyone just to leave because like I said, I had a really bad feeling and I just I just wanted everyone to leave. Q. You had been, do you remember that you had been telling Mr Norman in a stern voice to go away in the direction of the services club. A. Yeah.
Mr Norman's evidence does not assist the resolution of any factual issue. He said (p 14:42) that his last memory was probably two or three days before the incident. He maintained that under cross-examination. I note that Dr Valabjee who initially treated Mr Norman took a collateral (meaning from someone other than the patient) history. See generally pp. 633-634. The doctor also said that Mr Norman was very intoxicated and that he did not recall getting anything of significant substance from Mr Norman by way of history.
Dr Mary Langcake, the Director of Trauma Services at St. George Hospital to where Mr Norman was taken by air ambulance for treatment said (p 644:46) that Mr Norman was suffering post traumatic amnesia. Dr Langcake also gave evidence under cross-examination to Mr Keller for Talimalie (p 653:29 et seq) that according to the medical records one of the doctors who treated Mr Norman made a note to the effect that Mr Norman had "a reasonable recollection of events and anterograde memory". Anterograde memory is a memory going forward. The author of that note did not give evidence. We will never know precisely what "a reasonable recollection of events" actually means in the context of this case.
Essentially it was argued that Mr Norman was not being truthful when he maintained that he did not remember the events of 1 October 2017. Mr Norman was cross-examined by counsel for each of the three offenders on the extent of what he could remember. Mr Keller put to him the contents of the hospital notes. Mr Norman maintained he could not remember. The evidence in my opinion does not entitle me to find other than that Timothy Norman has no real memory of the events of the early hours of the morning of 1 October 2017.
Talimalie and Leavai gave records of interview to police that became exhibits "E" and "G" respectively. The transcripts of the interviews remained documents that were Marked For Identification (MFI) and did not go to the jury room unlike the electronic recordings. Talimalie said (Q/A 73 p 7; Q/A 196 p 17 MFI 17) that he was "king hit" by Mr Norman. At Q 214 he was asked, "is there any history between you and Tim Norman is there any reason this would happen?" He replied, "Nuh, no, there's no history at all, like, I was, I was clean with, with him---".
Talimalie was questioned extensively in the ERISP by police referring to the statements of the various witnesses. In answer to Q 717 (p 67 MFI 17) he said, "…I reckon the only person that witnessed the fight go down was Harriett. She was the only girl there". Clearly that was not the case as Ellie-May was also there.
The following appears commencing Q/A 103 (p 9 MFI 18) of the ERISP of Anzac Leavai: Q: OK. So you were walking back towards the club? A: Yeah, we were going back that way. Q: Yeah A: And we were going back that way and then this Timmy fellow…by now. He was coming up to us. He walked up to us and he was like staunching. Q: Yeah A: Yeah. And he walked up to us but I didn't see him there, the only time I saw him was when he hooked Ray (a reference to Talimalie). That was the only time I saw him. Q: Well what was said before that--- A: I don't remember Q: Yeah. Where were you standing? A: Like next to Ray like but on this side Q: Yeah A: Yeah, that's all I remember. I don't remember him saying anything, I don't remember like, all I remember is him walking, he crossed the road and he walked towards us in like a staunching manner he was walking at us. Q: Yeah A: And then all I see, I don't see anything, I carried on walking, we were walking with Ray (Talimalie). And then after that I seen Ray like stumble back and I turned around and I looked and, um---
The expression "staunching" is apparently a reference to having aggressive body language. Both Talimalie and Leavai in their ERISPs give an account of Timothy Norman punching Talimalie without provocation or notice - known as a "coward's punch" or to use some of the language at the trial a "dog shot".
None of the other civilian witnesses can assist as to the beginning of the incident. If provocation towards Ellie-May was to be established it would need to be established on the evidence I have just extracted, referred to or summarised. There is simply no basis on the evidence from which any finding on balance that Timothy Norman provoked the incident by his conduct towards Ellie-May Pettit. Further, on that same evidence I would if necessary be satisfied beyond reasonable doubt that there was no provocation from Timothy Norman by reason of his conduct towards Ellie-May Pettit. The issue of self-defence is another issue with which I will deal shortly.
Mr Michie in oral submissions at the sentence hearing (p 16:42 of 26.3.2020) put in effect there was an incident of domestic violence towards Ellie-May Pettit by Timothy Norman. Such a conclusion is not open on the evidence given at trial. Further, with respect to counsel on my reading of the evidence, the evidence was not such as to be able to ground such a submission and it should not have been made.
I will now review the evidence of the other events in Main Street Young in the early hours of the morning of 1 October 2017.
Very soon after Harriett Pettit told Timothy Norman to leave Harriett Pettit ended up on the ground (p 64:31). Ellie-May Pettit said that this happened very quickly and she did not see how her sister ended up on the ground. At the time Harriett went to the ground Timothy Norman was upright (p 65:31). A lot of people arrived at about the time that Harriett ended up on the ground.
Ellie-May Pettit gave evidence that Ray (Talimalie) was there when Harriett was telling Timothy Norman to leave (p 47:30). Norman was yelling, "It's OK, it's just me Ray". She did not see Talimalie or Leavai approach (p 47:41). At p 49:4 Ellie-May Pettit says: Q. Who was arguing? A. It was mostly the only person I could hear arguing was Harriett telling him to go and him saying it was okay. I don't really remember any other conversation than that, then it was when the ruckus had started and all like, there was a big group of people come and they were trying to break things up and Harriett was trying to break things up.
She went on to give an account of a number of people coming around the corner, namely Hannah Hetherington, Coedie Freeman, Mackeylee Delaney, and Ash Barlow - p 50. She goes on to give an account (p 51) of Coedie (Freeman) coming around the corner and he was doing the same as Harriett, trying to break it up. She saw JL fighting with Coedie - they were punching and hitting each other. Timothy Norman was pulled aside and people were kneeling next to him. Under cross-examination (p 68) she said that she was trying to pull JL out of the fight. At no stage did she see Coedie Freeman on the ground.
Further under cross-examination to Mr McColm (for Anzac Leavai) she gave an account of Freeman hitting Ray (Talimalie) from behind. She said (p 70:12), "He hit Ray from behind and that's when him and Jack started in a Ruckus". This was confirmed in answers to Mr Michie for JL at p 73:11. In re-examination the following appears (p 77: 29): Q. But the only thing you saw was Coedie punch Ray? A. And Harriett trying to pull them away. Q. And that's it? A. That's all I seen, yes.
As I have previously observed the evidence of Harriett Pettit does not really advance the matter. She gave evidence that she was at the scene (p 82) and that she told Timothy Norman to leave. The three offenders were waiting for her at Raine and Horne (p 83:1). The photographs clearly showed that Raine and Horne is at the intersection of Boorowa and Main Streets.
Harriett Pettit said that things got heated and that the next thing she remembered was just trying to pull everyone apart. After leave was given to the Crown pursuant to s 38 of the Evidence Act she said (p 95:34): "…I was just grabbing people,, I was just drunk, I was just doing the best thing, like as best as I could to grab whoever or whatever it was to get whatever was happening over, like I was just grabbing and grabbing…I was grabbing and getting pushed out and then grabbing and being pushed back out, like I don't - I don't remember, it was two years ago. Like I was just going what I could".
Significantly, Harriett Pettit gave evidence (p 97:10 and following) that she heard from Talimalie later that night by text message. When asked what the message said she said, "Just that it was my fault". This is significant for a number of reasons. Inter alia it fortifies my conclusion as to the absence of provocation.
Coedie Freeman, Hannah Hetherington, Trina Budin, Teena Delaney and Mackeylee Delaney who are the persons towards whom unlawful violence was used (count 4 on the Indictment) were all at the football club function at the RSL.
Coedie Freeman got to the function at about 5pm (p 101). He was with his girlfriend Hannah Hetherington. Freeman, Hetherington and Freeman's mother and sister namely Trina Budin and Kiara Freeman left the function about 9.30 to 10pm and went to the Australian Hotel. He did not have any alcohol at the RSL Club. He spoke to Anzac Leavai and JL at the Club (p 101:40).
He left the Australian Hotel at about midnight with the three people with whom he went to the hotel but also Ashley Barlow, Mackeylee Delaney and someone called Jake. They were making their way to the Criterion Hotel when they spoke to someone who told them that the Criterion Hotel was closed. They were standing on the corner of Boorowa and Main Streets outside Raine and Horne waiting to get a taxi to go home.
The evidence of Coedie Freeman continued that he saw Anzac (Leavai) standing on the chair (a reference to the park bench) on the corner, they were laughing between themselves and then Leavai was gone. He heard a noise from around the corner and went to investigate. He said that (p 105:32) that he saw three people jumping on top of someone laying on the ground. He described kicking and jumping. Of the three people he knew Anzac (Leavai) and the person he introduced him to earlier (i.e. JL) and he knew the other person as Ray (Talimalie). The evidence continued (p 106:27) that he ran from the corner, stood over the top of the person and pushed them off. He called them a bunch of dogs. He recognised Timothy Norman as the man on the ground.
The evidence continued that he pushed them off and Talimalie punched him in the mouth and JL hit him from the side and he fell down. They started punching and kicking him and he fell into the bush. He heard Hannah Hetherington say, "Trina, they are kicking Coedie" and then the group of them came running in. The people that were responsible for kicking him ran off by the time he got up. His assailants ran up a laneway that runs off Main Street. Anzac Leavai got a wheelie bin and climbed onto a roof. Coedie Freeman tackled JL and held him at which point the police arrived and took JL into custody. He thought that Timothy Norman was dead.
As a result of the assault on him Coedie Freeman sustained cuts inside his mouth and lump on his head. His ribs and hips were hurting the next day and he vomited blood.
Coedie Freeman was extensively cross-examined by counsel for each of the three offenders at the trial. Some of the cross-examination was directed towards precisely where various people were and what they were wearing. Some of the witnesses used clothing to describe the offenders. Coedie Freeman said to Mr McColm for Leavai (p 120:35 and continuing) that he was sure that the people were kicking or stomping the person on the ground because he saw the body move every time a foot went up and kicked him. He was not sure how many times they kicked. The kicking was directed from the chest to the head of the person on the ground. There were three people doing the kicking. At p 121:6 he said, "There was four people in total but three people - three people kicking and one person laying down". He said, "get off him you bunch of dogs". He also gives an account (p 123:40) of being kicked. It was put to him firmly that he did not see anyone kick or stomp on the person on the ground and he said, "No, I did". It was also put that "no one kicked or stomped or made contact with your body and their feet?" to which he replied, "They did".
Mr Michie (p 131:35) suggested in cross-examination that Mr Freeman punched one of the gentlemen in the face. That was denied. He agreed that he did not know what caused the incident with Mr Norman to take place. He remained firm that there were three people. Until Mr Michie was made aware of s 100 of Law Enforcement (Powers and Responsibilities) Act, 2002 there was a line of cross-examination to the effect that Mr Freeman was acting unlawfully in restraining JL. Mr Michie also put that he did not see three men stomping on the man on the ground. Mr Freeman remained firm that he did. Likewise Mr Freeman maintained that it was three and not two men.
Mr Keller also pursued the line of questioning as to the number of people involved in the attack on Mr Norman. Again he remained firm that there were three and not four and not two (p 147:36). The cross-examination then went into the detail of who was where and the various locations at the scene. It was put (pp 152-3) that he was mistaken as to seeing kicking and he maintained he was not mistaken.
The following appears commencing at p 156:13: Q. I want to suggest to you that you approached from behind Ray, what do you say about that? A. That that is wrong. Q. I want to suggest to you that not only did you approach from behind him but you hit him when you approached, what do you say about that? A. That is that is wrong.
That essentially is the extent of the cross-examination as to the issue of self-defence so far as the witness Coedie Freeman and the accused Talimalie is concerned.
Mr Keller on behalf of Talimalie put to Coedie Freeman that it was one of the others who punched him and not Talimalie. He remained firm that it was Talimalie. He again denied hitting Talimalie in the back of the head.
Hannah Hetherington was the next witness to give evidence. She consumed about six bourbons all night. She essentially gave the same evidence as Coedie Freeman about the movements of herself and the others from the RSL to the Australian Hotel and then on towards the Criterion Hotel. As they got to Raine and Horne she heard a big noise (p 162:42). She saw Coedie run up put his back against the wall and she heard him yell out several times to stop (p 163:34). She saw someone on the ground and someone jumping on the face of the person on the ground. There were two other males kicking the body of the person on the ground (pp 163-4).
Her evidence continued that Coedie said he did not want to fight, he was pushed and fell into the bushes. Coedie was punched in the face by the man wearing the red bandana. The man in the white shirt i.e. JL was kicking Coedie (p 166:43). She went on to say that "they were all into Coedie" (p 167:10-11).
In this regard I note the contents of the Juvenile Justice Background Report (Exhibit C on sentence) where at p 7 the following appears: "…In reference in the blood found on J's shoe, J qualified this to be one drip of blood and stated that one of his kicks had been to the head of victim 2 (i.e. Coedie Freeman) to ensure that he did not get up."
I draw from that that JL was responsible for more than one kick. Further, on that alone I can be satisfied beyond reasonable doubt that JL was one of the people who was responsible for kicking Coedie Freeman to the face or head area.
Ms Hetherington called out to Trina Budin and Kiara Freeman. In the chaos she got him (p 167:23). She blanked out a bit and woke up about a metre from Timothy Norman and she noticed that Coedie had one of the assailants in a headlock. She sustained bleeding to the mouth and nose and her denture had fallen out (p 168:24-8)
Ms Hetherington assisted Timothy Norman by holding his head and trying to scoop blood out of his mouth. A little later (p 168) she describes a group fighting and feeling overwhelmed.
Under cross-examination to Mr McColm for Leavai she said that she heard the noise and then saw Coedie run around the corner - p 179:12-38. She confirmed that she saw one of the men jumping, i.e. two feet leaving the ground at the same time (p 181: 36 etc.). She remained firm that she saw jumping and kicking (p 184). She saw Mackeylee Delaney get punched (p 187:37).
In answer to a question by Mr Michie for JL she said that Coedie did not punch anyone (p 196:39). She could not assist with how the incident started (p 197). She confirmed that she saw people jumping on Mr Norman while he was on the ground (p 198:6).
There was extensive cross-examination as to the various positions of the various people present at the scene, which became very laborious - see for e.g. my comment to Mr Keller at p 241:7 and continuing. The issue of confusion as to memories of the witnesses as to precisely who was where was amply demonstrated by Mr Keller tendering copies of the same photograph marked by the various witnesses. Given the nature of the events, i.e. groups of people some of whom were intoxicated, and the fluid nature of the events it is hardly surprising that the witnesses have slightly different recollections as to who was where.
On this issue I note in particular exhibits 2 and 3 which contain a number of photographs of the scene as marked by the various witnesses. At the risk of repetition given the situation that existed in Main Street Young in the early hours of the morning of 1 October 2017 it was highly unlikely that all witnesses were going to be completely consistent about the precise location of the various participants. In fact had there been that complete consistency I would have been more than slightly suspicious.
Mr Keller on behalf of Talimalie cross-examined Ms Hetherington to the effect that some of her evidence was not what she saw but what she was told - see for e.g. p 214:24; p 247:33. She denied the suggestion a number of times and remained firm that she actually saw the events of which she gave evidence.
On the subject of the Affray charge it is relevant to note the cross-examination of Ms Hetherington at pp. 217-8: Q. I'll try to use different words, it is important and thank you, if you didn't understand my question I will use different words and thank you. Do you remember seeing Coedie get up on to his feet from where he was in the bush you say the second time? A. Yes. Q. When you saw him get up to his feet, what did you see him do? A. I only saw people all around him it was a big scuffle. Q. And it was a big scuffle? A. There was lots of people all around and people trying to pull people off each other, people were in the fight trying to stop it, lots of different people. Q. Who was in the fight trying to stop it at that stage? A. Trina was there as well trying to help. Q. Who was? A. I remember seeing Trina yelling and Coedie was there and the three men. Q. Who else other than Trina? A. Macka, Mikali, sorry she came and Tina. Q. And they were puling at people were they? A. They were trying to get people to stop, I couldn't quite see properly I was quite hysterical. Q. Were they pulling at people? A. I can't remember. Q. Who else was there at that stage? A. That's all that I remember at that stage.
Ms Hetherington remained firm under cross-examination that she saw in effect three men jumping on and kicking Timothy Norman (pp 238-9). She denied that she was reconstructing her evidence. She denied that Coedie was throwing punches (p 240:25).
Trina Budin is the mother of Coedie Freeman and Kiara Freeman. She had no alcohol to drink before she went to the football club function and she had "maybe four or five glasses of Jim Beam and coke" at the RSL Club (p 252:43). She and a number of others left the club and went to the Australian Hotel. She saw the three offenders at the hotel that night. After about an hour at the Australian Hotel they left with the intention of going to the Criterion Hotel. The group was informed that the Criterion Hotel was closed. She saw the three offenders at the intersection near Raine and Horne. When she saw the three offenders at the corner one of them was "jumping around, like dancing on a chair" (p 254:49). The chair is a reference to the park bench.
Ms Budin goes on to give evidence that she heard a noise "like someone was punching a punching bag" (p 255:22). She looked around the corner and saw a person lying on the ground. Coedie was there with her.
At p 255:43 Ms Budin was asked, "You could see the guy lying there; what else could you see?" She replied, "Three boys standing over, kicking him". The "three boys is a reference to the three offenders. When asked which of them was kicking the man on the ground (pp 255-6) she said, "Well, it looked like they all were, just all standing above him, and you just see legs kicking, going". It looked to her like they were kicking him in the head (p 256:26).
At p 257:17 she said, "Me and Coedie and then sort of everyone else was gradually coming around as well…" That indicates to me that Ms Budin and Coedie Freeman were first of their group to go around the corner and observe what was occurring to Mr Norman on the ground. I am fortified in this by the answers in cross-examination to Mr McColm at p 276. She went on to say that Coedie was standing right in front of Timmy (Mr Norman) and Coedie was telling them to stop (p 257:23)
The evidence continued (p 257:40), "…Then Coedie's just sort of put his hands up to the boys and said like "just stop". I don't want to fight. Just stop". A little later (p 259:5) the following appears: Q. What actually happens next? A. Then it was just they were on top of us. Q. Who was on top of you? A. The three boys had knocked, knocked us down and then I was just trying to help Coedie, like trying to stop him from getting hurt but it just sort of rolled and ended sort of into a different spot. Q. In terms of you, what happened to you? A. At that point I think I just like, was just trying to help Coedie, like trying to stop him from being hit and kicked and then I got up from that, because I was on the ground, and then it had moved like over towards the telephone box. Q. How did you end up on the ground? A. From that part of it, when they when it just sort of erupted in a split second and I was just trying to protect Coedie. Q. What was happening to Coedie? A. They were just hitting and kicking and while he was on the ground. Q. Who was hitting and kicking? A. The three boys. Q. When you say he was on the ground and they were hitting and kicking, where was Coedie on the ground? A. Where near Timmy. Q. How did he come to be on the ground? A. Because they just they just jumped on him pretty much and knocked him to the ground and yeah. Q. Where was he being hit and kicked? A. Everywhere. He was on the ground and they were just hitting and kicking him.
Ms Budin also gave evidence (p 260:1) that she was thrown to the ground. She went on to describe that after she got up Coedie was in the garden bed bleeding, Mackeylee got hit and knocked out cold, and Teena Delaney was hit or pushed over (generally p 260).
During her evidence Trina Budin did quite often use the expression "we" rather than "I" or "me". When asked in cross-examination (p 266:36; 275:28) why this was so she said, "because we were a group". She conceded that she might have talked to others about the events "to some degree" (p 267:9) and that "there would have been some talk"
Given the events of the night I am constrained to comment that it would have been inevitable that the people involved who were in the group with Trina Budin and Coedie Freeman would have talked about the events of the early hours of the morning of 1 October 2017.
Ms Budin did not know how Mr Norman came to be on the ground - see p. 278. A little later she was asked whether she saw any jumping actions to which she replied (p 280:19), "Not that I seen, I seen kicking". She did not see her son hit anyone in the back of the head (p 282:3). There was further under cross-examination on this aspect. She saw her son pushed to the ground by the three offenders. (p 285:35 ff)
At the conclusion of Mr McColm's cross-examination of her Ms Budin disagreed that she was mistaken about seeing kicking occurring with a person on the ground, that her son hit one of the people in the head and that she did not see one of the persons kick her son. Mr Michie also put to her that Coedie punched one of the men and she again disagreed (p 300:46 ff). She said at p 308:9, "Coedie didn't throw a punch though…"
The following also appears at pp. 301-2 during Mr Michie's cross examination of Ms Budin: Q. That was the event where you say one of the other boys pulled your hair and arm? A. Mmm hmm. Q. And I think the words you used were "threw you to the ground"? A. Yep. Q. It could have been the case that when that happened, one of the other boys, to use your words, was in fact trying to stop you from getting hurt? A. No. Coedie was sitting in the gutter, in the thing, bleeding, and I was going over to him, and he just grabbed hold of me by the hair and threw me on the ground. Q. You don't know which one it was? A. The one with the hat on.
Mr Keller's cross-examination was as with most of the other witnesses was concentrated on the various positions of persons at the time the incident was occurring. Ms Budin remained firm that the man in the red bandana (Talimalie) kicked Mr Norman on the ground - see p 316:39 ff.
Ms Kiara Freeman also gave evidence of being at the function, going to the Australian Hotel and then going towards the Criterion Hotel. She saw "three boys" on the corner (p 323:4), which is a reference to the offenders. A little later she gave evidence of Mackeylee Delaney falling over (p 324) and then she heard "everyone yelling". She remembers her mum saying "Stop. Stop". She saw Timothy Norman on the ground and thought he was dead.
The Crown was granted a short adjournment during which Ms Kiara Freeman read her statement.
Kiara Freeman's evidence continued (p 332:21 ff) that when she got to the corner she saw a man lying on the ground and Coedie was over the top of him saying stop, I just want to check him. The three boys (a further reference to the offenders) were over the top kicking. All three of them were kicking. She heard Coedie say he did not want to fight.
Under cross-examination to Mr McColm for Leavai (p 335:23 ff) she said that the three of them were hovering over him and they were all having a go. They were all around him kicking. She was "pretty sure" that all three were kicking. It was put to her that in her evidence in chief before the short adjournment she did not say anything about kicking because she did not see any kicking. She said it was two years ago and reading the statement brought it back (p 337:16). She did not see Harriett Pettit at the scene (p 346:41 ff.) She was sure that she saw Timothy Norman being kicked (p 347:13).
Mr Michie on behalf of JL put (p.360:19 ff) that she could not see Mr Norman when she followed others around the corner. She agreed that she could not at that stage, but then she saw Coedie Freeman, heard him say "stop, stop" and then she noticed Mr Norman. There was further cross-examination on various aspects of her statement to police. Kiara Freeman maintained (p 367:30) that her brother Coedie did not take a swing at anybody.
Mr Keller's cross-examination concentrated as it did with the other witnesses as to the precise location of various persons present at the scene. It was put that she did not see the man with the red bandana (Talimalie) put a foot on Tim Norman. She maintained that she did see that (p 372:48).
Ms Kiara Freeman had some moscato (wine) and a pineapple cruiser. Although she had had some alcohol she was not particularly intoxicated.
Mackeylee Delaney was the next witness to give evidence. She had six schooners of beer when she got to the RSL Club. She had a further four schooners and a tequila shot at the Australian Hotel. She was a "bit tipsy", and on a self-assessment was an eight out of ten on the scale where 0 was sober.
She was with the group that had been at the Australian Hotel. At or near the intersection she heard "thumping". Coedie and Trina (Budin) took off and then Kiara went. She then saw a "whole heap of people in a huddle and a guy laying on the floor (p 380:40).
Ms Delaney fell over. She saw four islander people stomping and kicking. She went on to say that one had a maroon shirt on, one had a white shirt on and then one had dreadlocks - see generally p 382. A little later (p 383:26) she said that she could not picture the fourth one at all, but she believed there were four there. She then went on to give an account of all of them stomping and kicking. When she got to the scene she pulled one of the boys out (p 384:16). She said, "What the fuck are you doing" to which the man replied, "It's all good darl, you're good, don't worry about it". Ms Delaney responded by saying, "It's not fucking okay you're stomping on his head". The person then got out of her grip and "went back in and laid a few more boots in and then I pulled him out by the scruff of his dreadlocks and I don't remember anything from there" (p 384: 28ff). A little later (p 385:3) she said that when she had hold of the man by the hair he was "thumping his foot into Timmy again". She could not see Coedie Freeman at the time.
Mackeylee Delaney is the only witness to describe that there were four assailants. However, the manner in which she describes the three that she does is consistent with the descriptions given by others. Clearly she gave evidence of the three offenders "stomping and kicking" Mr Norman.
Mr McColm for Leavai put to Mackeylee Delaney (p 396:48) that at the time she saw the four persons around the person on the ground she could not see what they were doing. She replied, "No, I could see they were stomping and in a huddle but that was it". She admitted to being intoxicated. She confirmed that she saw four people (p 397). She was asked (p 399:22), "I suggest that you did not see anyone kick or stomp or use a foot against the person on the ground". She replied, "Well that would not be true".
Mr Michie on behalf of JL also cross-examined Mackeylee Delaney. She was asked about her police statement in which she described one of the assailants as wearing a blue bandana. She did not remember what the assailants were wearing (p 403:16ff). She saw Coedie Freeman running towards the huddle.
In answer to Mr Keller for Talimalie she said that Coedie was on his feet when she came around the corner.
Then Teena Delaney gave evidence. She "probably" would have consumed five beers and then five Jack Daniels (p 414:4) and probably a couple of drinks at the Australian Hotel. She gives an account (commencing p 415:8) of after leaving the Australian Hotel coming around the corner and hearing thumping. When she got to the corner of Main Street she could hear thumping and there was (p 415:26) "a couple of guys just thumping, like with their feet, into a person who was laying on the ground".
A little later (commencing p 416:3) the following appears: Q. So apart from that person on the ground, who else was there? A. There was, well, three others that I could see and two of them were like kicking into him and stomping him. And punching and, yeah. Q. Taking it one at a time, you saw two doing that? A. Yep. Q. Can you describe the first one? A. Yeah, he was a young guy, I think I would put in there like Kiwi appearance, really tall, and then the other one had dread locks. Q. The one that was really tall, do you recall what he was wearing? A. A white shirt. Q. The one with dread locks, do you recall what he was wearing? A. Yeah, it was a reddy, burgundy sort of shirt, yep. And a headband. Q. Can you describe the headband? A. The colour? Q. Yep? A. Well, I thought it was blue, yep. Q. The third person there, can you A. I can't recall, yeah. Q. So the two who were kicking and stomping, can you just say what each of them was doing? A. They were both stomping, one to his head, yep, and hitting into him as well. Q. When you say hitting into him? A. Into his head. Q. With what? A. Feet and fists(?). Q. Where were they standing in relation to the person on the ground? A. Right near his head. Near the wall, yeah.
The person wearing what was described as the head band is the offender Talimalie and the person wearing the white shirt who was described as a "young guy" is the offender JL.
The evidence of the account of the events continued at p 417:5: Q. When Coedie was doing that, where were you? A. Over next to the man on the ground. Q. And where was Coedie? A. He was on the ground more or less just up from the man's head and against the wall, because they were then punching into Coedie, because he had tried to stop them. Q. When you say they were punching into Coedie, who? A. The man in the white shirt and the man in the red burgundy shirt. Q. Where was the other one? A. I don't recall where he was. Q. Who punched Coedie? A. They both were punching into Coedie. Q. What happened then? A. Then Q. You said Mackeylee had fallen over? A. Yeah, Mackeylee had fallen over, so she had come up to the group as well and trying to get the man with the red burgundy shirt away from Coedie, I seen her trying to pull him. Q. How did she do that? A. She was pulling him from his shirt at first, trying to pull him back, he did, she was talking to him, it was like he sort of stopped and she was talking to him and then he went more for Coedie again, Mackeylee was pulling him then by his dreadlocks and that's when I got up and tried to help her pull the man with the shirt, the burgundy shirt off with the dreadlocks pull him off and that's when he turned around just punched Mackeylee in the face.
Teena Delaney then remonstrated saying (p 418:17) "are you fucking joking seeing what he just done to a girl. And then he pushed me like and I just went flat on my back as well, I called, I landed near Mackeylee but the rest of the way I crawled to Mackeylee, Mackeylee was unconscious". She later went to the hospital with Mackeylee. She described Talimalie as the offender who punched Mackeylee (4. 419:32).
As with the other witnesses it was put to Teena Delaney that she had discussed the matter with other witnesses (e.g. p 420:25). She maintained she was not particularly intoxicated - a 2 or 3 out of 10 (p 420:46).
Mr McColm on behalf of Leavai put to her (p 424:18) that she had told a police officer that there, "Islanders, there were three or four of them, I don't know it was just a blur". She did not remember saying this. She was positive that she saw kicking and stomping (p 426:34). At 431:14 she said, "Yeah they were. They were stomping and hitting Coedie". She then agreed that she made no mention of stomping or kicking in her statement (p 431:21). She also agreed with Mr Michie (p 435:7) that she said nothing in her statement about hearing thumping sounds.
Under cross-examination to Mr Michie for JL it emerged that Mackeylee Delaney fell over because she was wearing high heels (pp 431-2).
Nicola Hambilton attended the function at the RSL and later went to the Australian Hotel. After leaving the Hotel she was walking towards the taxi rank (I presume that is the rank in Main Street to the side the IGA supermarket on the corner of Main and Boorowa Streets) we she heard screaming (p 462). A little later (commencing at 463:35) she gives an account of what she saw: Q. When you got over there what did you see? A. We first witnessed Timmy Norman on the ground with blood all over his face, we seen his eyes rolling in the back of his head, we seen obviously a big group of people around so there was Coedie Freeman, Hannah, I recall them over towards the top of Timmy Norman when we seen Timmy then I looked to the side and Mackeylee was laying on the ground, she had blood over her mouth, she was crying, her mum was comforting her, yeah.
She saw Coedie Freeman run off (p 465:2) and the police chased after him. She told the police that Coedie Freeman was not responsible for what had occurred to Timothy Norman (p 465:37).
The common assault charge, which was count 8 on the indictment referable to JL alone relates to Nicola Hambilton being shoulder charged. She gives evidence relating to that (p 466:26ff): Q. No, just before you ran, before anyone ran at you, you were with Coedie? A. I was kind of behind to the side of Coedie so he was in front of me. I just went around the corner and it happened all very quick. So once I had seen someone there and then I got knocked over. Q. Can you just describe how it was that you were knocked over, what actually happened? A. I felt like I was charged at because the force of being knocked, I did go like, back quite far and then obviously grazed, the side of my body had grazes on me. I had a lump on my head and that so yeah. Q. At that point in time that you were hit when you first saw the person in the laneway you said as if he was hiding? A. But running sort of thing so obviously he was in the gap trying to get away. He knew people were coming after him. Q. Well we can't say what he knew only what you saw. A. I'm sorry, yeah. Q. How far did he run? How far did you see him run before he hit into you? A. It, 4 metres I think. Q. When he was running that 4 metres which way was he looking? A. Like, towards me. Like, out towards the road to Q. At that time that he was running towards you what was around you? A. Nothing. Q. What part of him hit you? A. I can't say exactly what hit me but it would have felt more like, like, a shoulder charge or something for me to go falling so far and to be knocked in the sternum area, I can't be sure exactly what part of his body hit me. Q. After he hit you, what was the next thing that happened? A. And that is when the police and Coedie got him so they ended up tackling him and putting him into the paddy wagon, yeah.
JL was tackled thereafter.
Under cross-examination to Mr McColm Ms Hambilton said that she had met Ray and Anzac (Talimalie and Leavai) before (p 470:24).
In answer to questions in cross-examination by Mr Michie (p 473:30ff) she said that when she eventually walked around the corner there was no fighting at that point, she did not see anyone throwing punches, she did not see kicking, stomping or jumping. It is clear on my reading of the evidence that Ms Hambilton came upon the scene some time later than a good number of the other witnesses.
Essentially, it was put to Ms Hambilton that she deliberately put herself in the path of JL. I said in the summing up (which was provided to all counsel in its entirety in advance), "In respect of count 8 it is the Crown case that it was the accused (JL) who deliberately shoulder charged Nicola Hambilton. The case for the accused is that any contact between them was with Nicola Hambilton's consent in that she deliberately put herself in the path of the accused". In the course of the summing up I summarised counsel's addresses in accordance with notes with which they had helpfully provided. There was no application for any redirection. The verdict of the jury of guilty to the count involving Nicola Hambilton clearly enough indicates that they did not accept the case for the accused in that matter.
Karissa Campbell also attended the football club function. She had little alcohol to drink as she was breastfeeding. She too went to the hotel where she saw some Pacific Islanders (p 485:4). Later in the night she was with some others going to the taxi rank. She with the others went to check out what was happening when they heard noise. She said (p 488:6 ff): Q. Just not, you can't say what we saw, what did you see? A. Okay, okay, I saw Kiara hovering over someone, I couldn't tell who it was at that stage. She was crying, covering him and then there was also Coedie and Hannah that were hovering over the top and that's when we got closer to them, I heard Coedie going, "Come on mate" like, "come on, come on" like he was, yeah, not breathing or something like that. I don't know, so. Q. Who were they hovering over? A. Timmy Norman. Tim Norman.
A little later in her evidence (p 488:41) she said that she phoned the ambulance and she saw Mackeylee Delaney laying further down. Timothy Norman was unresponsive.
The cross-examination was directed principally to the clothing of the various participants and the physical description of those there. I do not perceive that Ms Campbell's evidence assists in the resolution of the factual dispute that I need to determine.
Matthew Longhurst's evidence (commencing p 501) is in the same category of that of Karissa Campbell.
Ashlie Bayo gave evidence (without objection from any of the parties) by way of audio visual link from Adelaide. She had been at the football club function. She left that function and went to the Australian Hotel shortly after 9pm. Later she left that hotel and was heading towards the Criterion Hotel. She saw four Islander boys on the corner of the hedge near Raine and Horne - see generally p 558. She described the clothes they were wearing and thought one of them might have had dreadlocks. One of them was wearing a bandana. She started walking back towards the Australian Hotel (p 560:1). She saw Trina Budin and heard her call out to Coedie. She saw Trina running around the corner from Raine and Horne (p 560:16). She saw the "guy with the bandana stomping on Timmy Norman's head" (p 560:31). Timmy was laying on his back and bleeding severely from the head (p 560:49).
She went on to say that (p 561:15), "I was, I knelt down near Timmy, they stopped, I think because then someone came over and pulled him away or something, like yeah, I don't". She saw that Coedie was pushed into the garden (p 562:4).
Under cross-examination she said that the group she was with was drinking fairly constantly throughout the evening (p 564:3). She confirmed that she saw one person kicking (p 567:25-6). She again confirmed that in cross-examination to Mr Michie.
That completes the summary of the civilian witnesses who were at the scene. I watched and listened carefully as they gave evidence. The scene near the intersection of Main and Boorowa Streets Young in the early hours of the morning of 1 October 2017 would have been very confused. The trial took the better part of three weeks during which the events were examined in close and minute detail. The events themselves would have taken but a few minutes. Different witnesses were at different points when the incident started. It is not uncommon for witnesses of the same events to notice or concentrate on different things. I warn myself that the evidence of at least some of the witnesses may be unreliable because of intoxication through alcohol.
Be that as it may after sitting through the Crown case at the trial it was my impression that each and every one of the civilian witnesses, other than perhaps Harriet Pettit, was doing their best to tell the truth about events as best they could recall. Virtually all of the witnesses at the scene describe Timothy Norman being kicked and or stomped on. Ms Bayo says that one person was kicking. One of the witnesses says it was two and one of the witnesses says it was four but most say it was three. It is uncontroversial that each of the three offenders was at the scene.
I will now go to the medical evidence as it seems to be that counsel for the three offenders relies on the medical evidence to ground the submission that I could not be satisfied beyond reasonable doubt that the injuries sustained by Mr Norman were as a result of any kicking or stomping.
Dr Chetan Valabjee was the initial treating doctor at the Young District Hospital. He first saw Mr Norman at 00:48 on 1 October 2017 (p 630:29). The patient initially presented with multiple facial injuries as well as a head injury, which was a large occipital hematoma. This was put into lay terms as a large bruise and a mass secondary bleeding. There was bruising over his face and bilateral swelling of the eyes. He had significant facial trauma. (see generally p 631)
Dr Valabjee also noted that Mr Norman was quite intoxicated at the time and was quite combative. When asked to explain this (p 632) the doctor said that he would not have followed any clear cut instructions, taking off blood pressure cuff or oxygen saturation monitor, wanting to get off the bed and being non-compliant with instructions from medical staff. The doctor went on to opine (p 632:25) that there was a "dual reason" why Mr Norman was combative; "one would have been the effects secondary to alcohol or ethanol and one could have been a secondary to the head injury, an intercranial (as it is in the transcript, but I suspect should read intracranial) or a bleed in the brain which can sometimes give you this type of combative behaviour".
On the basis of the doctor's concerns about the head injury Mr Norman was then transferred to the Base Hospital and Wagga Wagga. He was transferred by air ambulance to St. George Hospital in Sydney.
Dr Valabjee was cross-examined and said that he obtained a collateral history that Mr Norman had been king hit and fell to the ground. A collateral history is a history taken from someone other than the patient (see pp. 633-4). Mr Norman was able to converse with the doctor in full sentences (p 634:47; 635:13).
Dr Mary Langcake also gave evidence by AVL. I do not resile from my observation (p 655:38) that she is without doubt one of the most impressive expert witnesses I have ever seen and heard.
Dr Langcake received information from the hospital at Wagga Wagga that a CT scan had been performed which showed a number of injuries. Details of those injuries are given at p 643 and continuing. The first was a skull fracture passing through the right petrous temporal bone. This was described as a fracture to the side of the head above the ear.
Further there was blood within the mastoid air cells. There were three fractures to the jaw bone. The first was in the centre of the chin and there was a fracture on both sides of the mandible (pp 643-4). There was a subgaleal hematoma or "big lump or big egg" on the head (p 644:15). There was a hematoma over the parietal bone. There was a 7 mm contusion on the subcortical white matter of the brain. The doctor said, (p 644:41) "In other words, deep to the bone under the skull there is a bruise within the - the white matter of the brain is the outermost part of the brain. So the energy has caused a bruise in the brain matter itself."
Mr Norman was also suffering post traumatic amnesia (p 644:45-6). He underwent surgery on 5 October 2017 which involved an open reduction, an internal fixation of the jaw fracture and the placement of arch bars (pp 644-5). There was a difficulty in that the bars apparently dislodged which required Mr Norman to be readmitted for further surgery on 12 October 2017.
Dr Langcake agreed with the proposition that significant energy transfer is required to fracture bones of the jaw (p 645: 31) and further that given that Mr Norman suffered a fracture in three places suggests the occurrence of a high energy transfer occurred. The doctor went on to say at p 645:37ff: Q. What do you mean by "a high energy transfer"? A. Look, although it is not possible to, you know, give it inters of the the newtons per square inch, bone is actually very strong and in some tests, bone has almost the same strength as high tensile steel. So to break it means that the amount of energy delivered needs to be high, it needs to be significant. Now, this is what we call blunt force trauma, so it means that there has been an an impact of some kind. And to break the jaw in three places, it would suggest that that impact is high. And we talk about it in terms of energy transfer. So this would require a significant amount of force to actually cause those bones to break.
Dr Langcake also said (p 646:2) Q. Is that consistent with a single punch to the jaw? A. Well, it is not possible to say that it wouldn't be consistent with a single punch. That would have to be a very, very hard punch to fracture a jaw in three places. Now certainly, if it hit in exactly the right point, driving again I am using my fingers, your Honour driving the necks of the mandible up into the skull so that they fractured at the same time that the synthesis Memphis s is fractured, however, the thing is that when the chin part fractures, that alone absorbs a lot of energy. So you have already transferred a lot of the energy to fracture the chin part of the jaw, so to suggest that that could also then be transmitted up into the necks, while not impossible, I think would be more unlikely.
Further, she went on to opine that in her experience of such injuries she would suggest it is less likely to have been from a single punch. When asked whether the three fractures to the jaw were consistent with a single kick to jaw area she said that it would be more likely than a single punch because of the energy transfer.
Dr Langcake was asked whether the fracture of the petrous temporal bone and the three jaw fractures could have come from the one single blunt trauma (p 646:30-33). She said that it was "highly unlikely that the single impact could cause fractures in three places to the jaw and cause the skull fracture in the point where it is…I would suggest is highly unlikely". She went on to say (p 647:7ff): A. Again, to sustain the three fractures to the jaw and also have it lead to the hematoma on the left hand side, again while nothing is impossible, it is unlikely because they are quite widely separated. As I said, one one sort of trauma to this area here, as I am showing on my face and jaw, and then a large hematoma on the side of the head, again is much less likely from one single blow.
Messrs. McColm and Keller cross examined Dr Langcake. She said (p 649:5ff) that it was not impossible for multiple fractures of the jaw to occur with a single blow. She said at p 649:43, "I would say that more than one blow would be in my view that more than one blow would have been required to produce the fractures that Mr Norman suffered"
Mr McColm suggested that the injuries that she observed on Mr Norman could be the result of a "guardsman" type fracture - i.e. occasioned by being struck once and falling onto a hard surface. Dr Langcake said (p 650:15ff) A. Yes. Similar to what you're doing but you're doing it this way, this would be a cut, I don't know if you can see me, that has come from below, coming up in an arc such as that landing on the chin, so an upper cut type of blow would need to be a very powerful punch, as again, I have indicated that it's not impossible but to produce the injuries that you yourself have described as the guardsman fracture, where a guardsman faints and lands on concrete on the point of the chin, you're now suggesting that a single punch could have that much power as a, if you like an upper cut type of blow, that would need to be a very powerful punch.
She went on to say (p 650:38) "It is my view that the likelihood that the chin and jaw fractures were produced by one blow is unlikely. It is my view that more than one, possible two were required to produce those fractures and in more than that, I can't comment on".
Mr Keller put a number of questions in cross-examination to Dr Langcake based on clinical notes. It was apparently recorded by a Neurosurgery Registrar that Mr Norman had "a reasonable recollection of events". (p 653) That is to say when asked about the history; the patient was able to give him a reasonable accurate history as far as the patient could remember. That last part of the answer is significant. We do not know what history was actually taken. By that stage Mr Norman would have spoken to a number of people.
I have spent many hours (in reality days) reading and extracting from the transcript. As I have already observed I sat through the trial and listened carefully to the evidence. I have attempted as best I can to extract the relevant parts of the evidence to the factual issues that seem to be in dispute in the sentence proceedings. I have not gone into detail as to the issues of the minutiae covered at the trial as to the precise location of who was where at various times during the incident. Given the nature of the trial and the surrounding circumstances I would have been very suspicious if all the evidence had neatly dovetailed.
There can be no doubt that JL kicked Coedie Freeman. At page 7 of the Juvenile Justice Background report the following appears: "(JL) made further statements during the interviews which appeared to further highlight a cavalier attitude towards violence, particularly about his assault of victim 2 (i.e. Freeman), i.e. 'I dropped him, he tried to get up, I kicked him, and he fell back down…'In reference in the blood on JL's shoe, JL qualified this to be one drip of blood and stated that one of his kicks had been to the head of victim 2 to ensure that he did not get up".
The emphasis on the words "one of his kicks" is mine. It is clear from those words that the young person JL was responsible for more than one kick, and that one of his kicks was to the head of Mr Freeman. This extract from the Background Report clearly shows that JL had no compunction about becoming involved in the very substantial violence that was taking place.
Mr Michie on behalf of JL puts that as the sentencing judge I could not be satisfied beyond reasonable doubt that the jury rejected the offender's claim they were acting in self-defence. It was put to the jury in the summing up (again noting that there was no application for a redirection from any party) that the secondary position of the Crown was that even if they were of the opinion that self-defence is an issue that falls for determination the jury would nevertheless be satisfied beyond reasonable doubt that the response, i.e. the sustained attack involving kicking, punching and stomping was not a reasonable response to the threat with which they were met.
As I have previously set out both Talimalie and Leavai in their respective ERISPs give an account of Talimalie being assaulted by Timothy Norman by way of what has become known as a coward's punch. There is nothing in the evidence of Ellie-May or Harriett Pettit that would enable me to make a finding that Timothy Norman assaulted Talimalie. Further and significantly there is the text message from Talimalie to Harriett Pettit suggesting that the events were her fault. The issue of him being struck or hit is not raised in this message. That message is a particularly significant piece of evidence.
The records of interview are untested. I am not able to draw any inference adverse to the offenders because they did not give evidence - see Strbak v The Queen. However, in criminal trials where the accused has not given evidence but did give a record of interview juries are routinely directed in accordance with the decision of the High Court in Mule v The Queen (2005) 156 A Crim R 203; [2005] HCA 49. In that decision Gleeson CJ, McHugh, Gummow, Hayne & Heydon JJ said at [20]-[21]: "The primary argument must be rejected. The Criminal Code, in s 638, empowered the trial judge to make such observations on the evidence as he might think fit to make. The prosecution tendered (relevantly) the whole of the videotape of the police interview. On it, the jurors saw and heard the appellant's solicitor, with occasional support from the appellant himself, assert that the drugs were for personal use. They heard no sworn testimony from the appellant. What were they to make of that? The judge was bound to instruct them (as he did, in orthodox fashion) about the appellant's right to silence. He also instructed them that the whole of the contents of the interview amounted to evidence to which they could pay regard. It was legally correct for him to tell them that they were not obliged to give the same weight to everything that was said in the interview. Indeed, if he had not told them that, it is possible that they might have assumed the contrary, or at least they might have been left uncertain as to their capacity to discriminate between different parts of the evidence. Jurors are commonly told that they may approach the evidence selectively and in a discriminating fashion, that it is for them to decide what evidence they accept and what evidence they reject, and that the law does not require them to give all evidence the same weight. An instruction of that kind, put as an abstract proposition, is an instruction of law. When related to the facts of a particular case, it may have the character both of an instruction of law and of an observation upon the facts. It is the duty of a trial judge to relate instructions of law to the facts, and, in the result, what is said to a jury may involve both instruction and observation. An observation by the trial judge that the appellant's out of court assertions, although disclosed in evidence by the prosecution's tender of the videotape, were not sworn testimony, that, unlike the admissions, they were not against the appellant's interests, and that the jury could give them less weight than the admissions, was proper. To a lawyer, it might seem to be a statement of the obvious, but it is understandable that a trial judge might make it. Some jurors could have been puzzled about the consequences of the prosecution having, in effect, put the defence case before the jury. In the circumstances of this trial, if the judge had not explained to the jurors that they were entitled to attach different weight to different things that were said during the interview, they might have felt obliged to give everything that was said in the interview equal value."
It follows therefore it seems to me that for these reasons as the tribunal determining beyond reasonable doubt what the facts are I am able to give less weight on the contents of the record of interview because they were not on oath or affirmation. I do give those records of interview less weight. Again, I note the message that Talimalie sent to Harriett Pettit saying that it was all her fault. I also note the vicious and sustained nature of the attack on both Timothy Norman and Coedie Freeman taken with the very violent conduct directed towards others at the scene.
Mr Michie in his supplementary submissions poses the question, "The question might be rhetorically asked: why else would the offenders have assaulted Mr Norman". It is inappropriate for me to engage in speculation. I have extracted from the evidence at some length.
In approaching the finding of the facts on the issue of self-defence it seems to me that I should apply the same onus and standard of proof on the issue as on a question of determining guilt - i.e. it is for the Crown to negative self-defence beyond reasonable doubt. I am fortified in this by the judgment in Strbak v The Queen. Applying that onus and burden of proof despite what is contained within the records of interview and taking into account the evidence of Ellie-May and Harriett Pettit I am satisfied beyond reasonable doubt that the offenders were not acting in self-defence so far as Mr Norman is concerned. For more abundant caution I am satisfied beyond reasonable doubt that the accused did not believe at the time of physical contact with Timothy Norman that it was necessary for them to do what they did to either defend themselves or another person. For those same reasons I am not satisfied on balance that Timothy Norman provoked any of the offenders.
Mr Michie further submits (para 7 MFI 2 on sentence) that because "the evidence was equivocal as to the number of people who actually assaulted Mr Norman such that the offender may have been found guilty of this offence on the basis of a joint criminal enterprise with Messrs. Talimalie and Leavai he should be sentenced on the basis that he was present but he did not participate in the assault on Mr Norman."
I have extracted at very considerable length the evidence from the trial. It is the situation that Teena Delaney said there were two people and Ashley Bayo said there was one. However, the overwhelming number of witnesses gave an account of the three offenders each participating in the violence towards Mr Norman. I have already made the observations that the events would have happened very quickly, different witnesses were at different locations and different witnesses will observe different things. On the totality of the evidence that I have extracted I am satisfied beyond reasonable doubt that all three offenders were active participants in inflicting the violence on Timothy Norman. In any event Teena Delaney describes the man in the white shirt - i.e. JL as being one of the two men being actively involved in the violence towards Mr Norman - see p 417:5 - 20.
In respect of count 3 on the Indictment, i.e. the Assault Occasioning Actual Bodily Harm in Company it is submitted on behalf of JL (para 8 MFI 2 on sentence) "because the evidence in the trial was that the offender went to the assistance of Mr Talimalie after he had been hit from behind by Mr Freeman the offender should be sentenced on the basis that he was provoked by Mr Freeman. The footnotes refer to the evidence at p 70:08-19 and 73:15-24.
For more abundant caution I will set out those parts of the evidence. The witness was Ellie-May Pettit: Q. Did you ever see anyone king hit Ray? A. I seen Coedie hit Ray. Q. The term, "King hit", is that something that you've used? A. It is something that I've used that I wish I didn't. He hit Ray from behind and that's when him and Jack started in a ruckus. Q. He hit Ray from behind. A. Yes. Q. Is that what you meant by king hit? A. That is from behind, yes. Q. After you went and got your parents, what did you do? Did you return back to where this fight had occurred? A. Yes, we returned back to where the fight had occurred.
I note the open question that begins this last extract of the evidence, namely "did you ever see anyone king hit Ray". If she had seen such a thing occur to Talimalie we could reasonably have expected her to say so in answer to that question.
Self-Defence was very much live issue at the trial so far as count 3 was concerned. Further, on the evidence that I have extracted previously I am satisfied (to the criminal standard) that Coedie Freeman only became involved after the three offenders had begun their violent and sustained attack on Mr Norman. It is also significant in my view that Harriett Pettit who was also at the scene gave no account of what her sister apparently saw. I am not satisfied on balance there was provocation from Mr Coedie Freeman. I am satisfied beyond reasonable doubt that self-defence or defence of another played no part in the assault by JL on Coedie Freeman. For more abundant caution I am satisfied beyond reasonable doubt that the offenders did not believe it was necessary for them to do what they did was necessary to defend themselves or another from the actions of Coedie Freeman. Any force from Mr Freeman was on the evidence only to assist Timothy Norman who was on the ground.
As I understand the submissions all of the offenders put that the three offenders all be sentenced on the basis that they were provoked by both Timothy Norman and Coedie Freeman. It should be tolerably plain from what I have already said that I am not satisfied on balance there was provocation and I am satisfied beyond reasonable doubt that self-defence had no role in the assaults on either of the victims.
Therefore I proceed to sentence on the following facts:
On the evening of 30 September 2017 there was a 50th birthday for Sue Pettit who is the mother of Ellie-May and Harriett Pettit at the RSL Club at Young. The three offenders including JL were at that function and all three of them consumed alcohol during the evening. Also at the RSL Club was an end of season function for the Burrangong Bears Ladies Tag (or Touch) Football Club. Coedie Freeman the victim nominated in count 3 of the indictment was one of those present at that end of season function. A good number of the civilian witnesses were also at that football club function. The witnesses all consumed alcohol to varying degrees. The issue of the intoxication of the various witnesses has been dealt with in the extracts from the trial set out earlier in these reasons.
Timothy Norman spent several hours at the RSL Club at Young on the evening of 30 September 2027. He was not attending either the birthday party or the football club function but had some unremarkable interaction with a number of people including some of the offenders in the course of the evening.
Coedie Freeman and a number of the witnesses walked from the RSL Club to the Australian Hotel which is in Boorowa Street, i.e. the main street of Young. Most of them had further alcohol at the Australian Hotel. There were two routes that could be taken to the Australian Hotel namely along a short lane or go to the Boorowa Street and turn left.
After spending some time at the Australian Hotel, Coedie Freeman and some of the other witnesses left that hotel in order to make their way to the Criterion Hotel. The group was given information to the effect that the Criterion Hotel had closed and it was decided that most of them would go home. The group including Coedie Freeman were at or very close to the intersection of Main and Boorowa Streets at Young.
Meanwhile, Timothy Norman had left the RSL Club and was in Main Street in the vicinity of a laneway that is to the south of the intersection of Main and Boorowa Streets. There was some interaction between Harriett Pettit and Timothy Norman. Given the evidence I have extracted and reasons already given I am satisfied that Timothy Norman did not commit any act of violence towards Ms Pettit.
At or about the time of this interaction between Harriett Pettit and Timothy Norman the three offenders, all of whom were intoxicated by alcohol to some extent, were at the intersection of Boorowa and Main Streets in Young and in particular in the vicinity of a park bench that is clearly shown in some of the photographs in exhibit B in the trial.
During the interaction between Harriett Pettit and Timothy Norman the three offenders approached where Timothy Norman was. For reasons set out above I am not satisfied on balance there was any provocation. Each of the three offenders set about assaulting Timothy Norman by hitting, punching and kicking. I am not able to determine the number of kicks delivered or the extent of the kicking. However on the evidence which is extracted above I am satisfied beyond reasonable doubt that each of the three offenders kicked Timothy Norman while he was on the ground.
As a result of the attack on Timothy Norman he sustained the injuries as described in particular in the evidence of Dr Mary Langcake, namely a fracture of the skull passing through the right petrous temporal bone, three fractures to the jaw, a subgaleal hematoma, bruising to the brain and post traumatic amnesia.
Those injuries required urgent transfer from Young then to Wagga Wagga Base Hospital and from there to St. George Hospital in Sydney where surgery was performed by way of internal fixation of the jaw fracture. The arch bars inserted in the course of surgery dislodged and further surgery was required. The injuries meant that Timothy Norman spent something in the order of three or four months off work.
Given the nature and severity of the injuries taken with the evidence given by Timothy Norman (p 15:49) there are some ongoing sequelae limited to anxiety and headaches.
Coedie Freeman and Trina Budin were in the near vicinity when the attack on Timothy Norman commenced. Although they did not observe the attack commence they came upon the scene very soon after the attack started. Mr Freeman intervened in order to come to the assistance of Timothy Norman. I am satisfied beyond reasonable doubt that any contact by way of hitting or punching by Coedie Freeman to any of the offenders was conducted in circumstances where Coedie Freeman formed the opinion that given the circumstances with which he was met it was necessary to defend either Timothy Norman and/or himself and further his response was a reasonable response in the circumstances.
After Coedie Freeman intervened each of the three offenders directed an attack towards him by punching and kicking him. Given the contents of the Juvenile Justice Background report there can be no doubt that JL was responsible for at least one of the kicks to Coedie Freeman's head.
As a result of the attack on Coedie Freeman he sustained the injuries of which he gave evidence, (p 114:1) namely, cuts inside his mouth, a lump on his head and pain to various parts of his body including his hips. The injuries sustained by Coedie Freeman are not particularly significant considering the ferocity of the attack on him. The relatively minor injuries sustained by Coedie Freeman indicate clearly enough that kicking can be inflicted that does not result in significant injuries.
Very soon after the attack on Coedie Freeman the other civilian witnesses, namely Hannah Hetherington, Mackeylee Delaney, Teena Delaney, Kiara Delaney, Nicola Hambilton, Karissa Campbell, Matthew Longhurst and Ashley Bayo came upon the scene whereupon the three offenders entered on an Affray by hitting, punching, pulling and shoving at those people who were at the time attempting to assist either Timothy Norman and/or Coedie Freeman. During that affray JL shoulder charged Nicola Hambilton.

Subjective Cases for the offenders

Having dealt with the above issues relating to the young offender JL it is convenient now to go to his subjective case. No oral evidence was called from or on behalf of the young offender. Mr Michie did make written submissions and did provide a number of authorities. Counsel for JL relies on the material contained within the Juvenile Justice Background Report to which I have already referred in respect of matters already dealt with.
JL was 16 years and 6 months at the time of the offending at is just 19 at the time of passing of sentence. He was born in New Zealand and the co-offender Talimalie is a cousin. He is the youngest of five siblings. He came to Australia in early 2016 and resided in Melbourne before the family moved to Young where he lived with relatives. He returned to New Zealand sometime after the offending on 1 October 2017. Almost all of his immediate family live in New Zealand. He completed the 2015 school year in New Zealand. The death of his adoptive mother impacted significantly on him.
The Background Report goes on to set out that JL had issues with ongoing violent and aggressive behaviour at a school in Victoria to the point where expulsion papers had been prepared. In respect of another school he attended JL was "involved in a major incident outside the school grounds" and he did not return to the school. There were issues in respect of fighting and disruptive behaviour at Young High School. However the Report also sets out that at school JL was well groomed and consistently respectful to some people.
At the time of the offending JL's significant peer influences were the co-offenders with whom he was living. Most of his peers were involved in training and playing in the local rugby league competition. It is clear from the Report that rugby was a significant part of the life of the offender. He enjoyed considerable success while playing at Young.
The Report sets out that JL consumed alcohol on the night of the offending both at the RSL Club at the birthday party as well as a hotel. He has used cannabis but not regularly.
The offender gave his version of the events leading to the offending to the author of the report. The offender's version differs markedly from the evidence that I have extracted and is very different to the factual findings I have made. I note again it seems that JL having 'dropped' Coedie Freeman to the ground was more than prepared to kick him to prevent him from getting up.
It is apparent from the report that JL has limited insight into the offending and the effects of the offending. At p 8 the following appears: "…While this level of strength is an asset in physical activities that (JL) enjoys his greatest successes, he has presented as currently lacking an ability to accept responsibility for his behaviour and actions in these offences. (JL) also presented as a young man who appears motivated to maintain loyalty to the co-offenders who have been key figures in his life, particularly since his arrival in Australia and this is likely to continue to impact his development of pro-social attitudes"
The Report sets out that as JL is now over 18 years of age the supervision of any community based order will be conducted by Corrective Services rather than Juvenile Justice. I presume this extends to parole.
JL expressed to the author of the Background Report that his preference is to remain within Australia and to live with relatives in Melbourne. The Report expresses that the young offender has good family support. It is his intention to seek employment upon release.
Mr Michie correctly submits (paragraph 18 of MFI 2 on sentence) that JL requires "a good deal of counselling or other assistance" to address the issues relating to the death of his adoptive mother, to avoid anti-social peers, to develop pro-social peer, to develop remorse and a greater respect for the law and to develop better coping strategies.
One of the impediments to developing pro-social peers what appears in the extract above at [218] namely, his loyalty to the co offenders. I also note at p 10 of the report when dealing with the appropriateness of Youth Justice Conference (which would be wholly inappropriate in any event) the author of the report notes that (JL) "remained adamant that he and the co-offenders actions are either incorrectly reported or are justifiable".
Clearly there is no evidence on which I could make a finding of remorse. Given the attitudes expressed and the manner in which the young person conducted himself taken with the somewhat concerning issues relating to violence at and in the vicinity of the schools he has attended I am not prepared to find on balance that the young offender is unlikely to re-offend.
There are some positive aspects. He has good family support. He is a good sportsman. He expresses a wish to obtain employment. Despite these issues the issue of his long-term rehabilitation will depend largely on how he engages with the relevant authorities upon release and the course that he takes. Put simply, it is too early to determine whether there are good prospects of rehabilitation. I decline to make a finding on balance that there are good prospects of rehabilitation.
Mr Michie's primary submission is that I deal with JL by way of sentence in respect of the s 33(1)(b) matter by way of a sentence of three years or less and that such sentence be served by way of Intensive Correction Order. I admit to some surprise at this submission and inquired of Mr Michie at the sentence hearing as to whether that was a serious submission. Counsel answered in the affirmative. I will return to this issue of the sentence and the manner in which it is to be served after dealing with the subjective cases of the other two offenders.
However, the secondary position was that I would find special circumstances. Given the age of the offender, that this is his first time in custody and the need for intensive supervision in respect of a number of matters including a proper and law abiding reintegration into the community I accept that there should be a generous finding of special circumstances in respect of JL, not least because he was a juvenile at the time of offending.
I turn now to the subjective case for Raymond Talimalie. He was born on 17 July 1994 and accordingly he was 23 at the time of offending and is 25 (approaching 26 at the time of sentence. No oral evidence was called from or on behalf of Talimalie but a number of references were tendered. The court is also assisted by a Sentence Assessment Report (SAR).
The SAR sets out that the offender on release plans to live in the Queanbeyan area with his partner who is expected to give birth to their child in July 2020. He verbalised that his involvement in rugby league has been a positive influence on his life.
Talimalie denied involvement in the offending to the author of the report and maintained that he was "doing time for something I didn't do". However he went on to tell the author of the report that he defended himself. He also maintained that the victim "started the series of events".
The SAR goes on to note that Talimalie was under the influence of alcohol at the time of the offending. The author also notes that he presented with a history of problematic alcohol use which has contributed to conflict with the criminal law.
Under the heading "Mental Health" the SAR notes that he has no formal mental health diagnosis however reported self-concern for his ongoing aggression and traumatic upbringing. There is no expansion upon what is meant by the expression "traumatic upbringing" either in the SAR or the oral submissions made by counsel at the sentence hearing. There is nothing contained in any of the references that expand upon that issue with the exception in the reference from Kate Leavai that he grew up lacking a good role model. The bland comment in the SAR to the extent that the offender had a traumatic upbringing even taken with the comment about lacking a good role model does not without more enliven the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37.
A number of the references tendered on behalf of Talimalie are from family members. Unsurprisingly they speak of offenders positive aspects including loyalty to family and his prowess with rugby league. There is also a theme that the offending is out of character with the Raymond Talimalie with whom they are acquainted. The offender obviously enjoys good family support.
The offender also enjoys very good support from his partner Ms Emily Pereyra. She has visited the offender regularly in custody and notes that he has completed a number of courses in gaol. The offender has indicated to his partner that he wishes to change his lifestyle, which she attributes in no small way to the impending birth of their child.
There is no evidence from which I could find on balance that the offender Talimalie is remorseful. Given the matters on the offender's record I am not prepared to find on balance that he is unlikely to re-offend. On the issue of rehabilitation there are some positive indicators, especially from his partner. However, noting the offender's record and issues with alcohol much will depend on his engagement with the relevant agencies upon release and the choices he makes. Again, put simply it is simply too early to tell whether there are good prospects of rehabilitation.
At the sentence hearing Mr Keller put that I would make a finding of special circumstances. Given the offender's still relatively young age and noting that the sentence that will be imposed will be relatively lengthy he will need some assistance to reintegrate into the community. He will also need supervision to ensure that he gets the appropriate treatment and counselling for alcohol abuse. I am prepared for these reasons to make a finding of special circumstances but that finding will not be substantial.
Mr McColm for Leavai made oral submissions as to the facts. I have already dealt with the facts at length and I do not propose to revisit the facts. No oral evidence was called from or on behalf of Anzac Leavai. However some written material was tendered.
Initially, there is exhibit 2 which is a hand written from the offender expressing remorse for the offence. The offender apologies for the time spent on his case but there is still an argument as to the facts to be found. Leavai says in the letter that he accepts responsibility. He also talks of having employment in the construction industry and attending a gym on a regular basis. He expresses that after his involvement in this matter he will not re-offend.
Further in the case for Leavai is exhibit 3, a psychological report by Ms Julie Dombrowski of the Legal Psychology Group. At paragraph 6 on p 2 the author notes that "Mr Leavai expressed regret for his involvement in the offence. I'm sorry it happened. Seeing my brother get hit was really hard and I just retaliated. Family is everything to me. My brothers would defend me…I wish I had walked away". I have already dealt with the issue of self-defence and defence of another when dealing with the facts.
Mr McColm submits that on the basis of the letter and the statement to the author of exhibit 3 that I would find on balance that the offender is remorseful. I note the effect of the decision of Imbornone v R [2017] NSWCCA 144 at [57]. The statements of regret are totally untested. This is the same with the expressions of remorse to the offender's partner. With some hesitation I am prepared to make a finding that Leavi is remorseful but the weight to which I will give that finding is limited noting that the expressions of remorse are untested. I accept the fact that the matter was defended does not of itself preclude a finding of remorse.
Turning to other aspects of exhibit 3 the report sets out that the offender Leavai is a 20 year old man of Samoan descent. He was anxious about the sentence proceedings, which is understandable. He had consumed up to 18 standard measures of alcohol on the night of the offending. He maintained to the author of the report that the victim approached them in an aggressive manner and that he saw the man punch his brother. I have dealt extensively with the facts.
The report, exhibit 3 also notes (paragraph 7) that the offender works in gaol as a sweeper doing laundry and meal delivery.
At paragraph 8 on page 3 of the report it notes that although the offender was born in Samoa he lived in New Zealand with his parents and four older siblings since 9 months of age. His father was a heavy drinker and was frequently violent towards his mother. His parents separated when he was 4. His mother entered a new relationship. The family moved to Melbourne when he was 12. His mother and step father separated in 2017 and thereafter he went to live in Young.
Given the information about the exposure to alcohol and domestic violence I am prepared to find to some limited extent (noting the separation when he was 4) that the factors enunciated by the High Court in Bugmy v The Queen are enlivened, reducing the offender's moral culpability to some limited extent.
Returning to the contents of exhibit 3 the offender attended school both in New Zealand and Australia and left school before completing Year 11. He has worked in demolition. He is a talented rugby league player and played for the Melbourne Storm Club in 2015 and 2016. He has a partner who he hopes to marry upon his release from custody.
Clearly given what is contained at paragraphs 12 and 15 the offender Leavai has an issue with excessive consumption of alcohol. The author of the report recommends that the offender receive treatment in the future for the issues relating to alcohol abuse.
Given Leavai's relatively young age, the fact that this is his first time in custody and the need for supervision to ensure that he receives appropriate treatment and counselling for alcohol abuse I am prepared to make a finding of special circumstances in respect of Leavai. This finding will be more generous than that for Talimalie but not to the same extent as JL noting that JL was a juvenile at the time of the offending.
In respect of the offender Leavai a number of testimonial references were tendered. One is from his partner who has known the offender since 2015. She speaks of his strong Christian faith. He is a good provider for his family. He is talented with music as well as football. The offender has expressed to her his regret for being involved in the incident that led to him being in custody.
In addition to the reference from his partner there are references from a number of friends, family and acquaintances all of whom speak well of the offender and some of whom indicate that the offender has expressed remorse to them. I note the owner of the gym that the offender attended in Sydney is one of the referees.
Clearly the offender enjoys good family support. He has no prior record and some sporting prowess. Again with some hesitation I am prepared to find on balance that Leavai is unlikely to reoffend and that there are good prospects of rehabilitation.

At a glance

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Judgment (11 paragraphs)

Cases Cited (41)

Cited By (2)