Brett Richardson v Regina

[2015] NSWDC 246

District Court

New South Wales

Medium Neutral Citation:

Brett Richardson v Regina [2015] NSWDC 246

Hearing dates:

27 May 2015

Date of orders:

10 June 2015

Decision date:

10 June 2015

Jurisdiction:

Criminal

Before:

Judge AC Scotting

Decision:

See paragraphs [40] and [41]

Catchwords:

CRIMINAL LAW – assault – grievous bodily harm – wreckless – affray - finding of guilt

 

SELF DEFENCE– statutory principles – test – self-defence of another – self-induced intoxication – conduct necessary for self-defence – reasonable response in the circumstances as perceived by appellant

  APPEAL – principles – not guilty – severity

Legislation Cited:

Crimes Act 1900
Crimes (Appeal and Review) Act 2001

Cases Cited:

R v Viro (1978) 141 CLR 88
R v Conlon (1993) 69 A Crim R 92
R v Katarzynski [2002] NSWCCA 613
Fox v Percy (2003) 214 CLR 118
Gianoutsas v Glykis [2006] NSWCCA 137
Charara v R [2006] NSWCCA 244

Category:

Principal judgment

Parties:

Brett Richardson (Apellant)
Regina (Respondent)

Representation:

Solicitors:

  Macedone Legal (Appellant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s):

2014/144384

Judgment

1. Brett Richardson (the appellant) appeals against the convictions entered by Mr Connell LCM on 3 December 2014 at the Sutherland Local Court.

2. The appellant pleaded not guilty to one count of Affray pursuant to section 93C(1) Crimes Act 1900, and one count of Recklessly Causing Grievous Bodily Harm pursuant to section 35 (2) of Crimes Act 1900.

3. At the conclusion of the hearing, the magistrate convicted the appellant of both counts. In relation to the charge of Affray the magistrate ordered that the appellant enter into a good behaviour bond for a period of 12 months pursuant to section 9 Crimes (Sentencing Procedure) Act 1999. In relation to the charge of Recklessly Causing Grievous Bodily Harm the appellant was ordered to perform 450 hours of community service and to pay compensation in the sum of $5,013.90 to the victim, Erin Brighten.

4. On the appeal, Mr Macedone, solicitor appeared for the appellant and Ms Roatz, solicitor, appeared for the Director of Public Prosecutions, the respondent in the proceedings.

5. On 25 April 2014 the appellant attended licensed premises known as ‘The Sting Bar’ on the Kingsway at Cronulla (the premises). The licensee of the premises, Pasquali Traino was a friend of the appellant. At about midnight, Mr Traino had cause to remove a patron, Luke Provan from the premises. At or about the time of Mr Provan’s removal, Mr Traino asked the appellant to “watch his back” as he was concerned that Mr Provan had been using the drug which is commonly known as “ice”.

6. Mr Provan was removed from the premises by a security guard and Mr Traino. After being restrained for a short period Mr Provan broke free from the security guard and started to threaten and to throw punches towards the security guard, the appellant and the people nearby that included Mr Traino. The appellant, the security guard and Mr Traino were then engaged by Mr Provan in a fight. In the course of that fight the victim Ms Brighten, pulled the appellant’s shirt and he responded by striking her with his right hand in the face causing her to fall to the ground. She suffered a broken jaw and the defence conceded that her injuries amounted to grevious bodily harm.

7. Immediately after striking Ms Brighten, the appellant quickly approached Mr Provan and punched him in or about the head a number of times and then procceded to knee him in the abdomen about 3 times in quick succession. During those strikes Mr Provan was being punched by the security guard and Mr Traino and the security guard were trying to get hold of him. After a short time other security guards pulled the appellant out of the fracas and escorted him inside the premises at about the time when Police arrived.

The Relevant Law

8. The applicable principles to be applied in determination of the appeal are as follows:

1. Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31];

2. The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22];

3. Whilst the magistrate’s reasons are not part of the certified transcripts referred to in section 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24];

4. The Court is obliged to give the judgement which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].

9. Section 418 Crimes Act 1900 provides:

(1)   A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.

(2)   A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

(a)   to defend himself or herself or another person, or

(b) …

(c) ….

(d) ….

and the conduct is a reasonable response in the circumstances as he or she perceives them.

10. The statutory test for self-defence was considered in R v Katarzynski [2002] NSWCCA 613. The questions to be considered by the tribunal of fact when self-defence is raised are:

1. is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself (or another); and

2. if there was, is there also a reasonable possibility that what the accused did it was a reasonable response to the circumstances as he or she perceived them?

11. The first question is to be determined from a completely subjective point of view considering all the personal characteristics of the accused at the time he or she carried out the conduct. The second question is determined by an entirely objective assessment of the proportionality of the accused’s response to the situation as the accused subjectively believed he or she faced. The prosecution negatives self-defence if it proves beyond reasonable doubt that either:

1. the accused did not genuinely believe that it was necessary to act as he or she did in his or her own defence (or that of another); or

2. what the accused did was not a reasonable response to the danger, as he or she perceived it to be.

12. Self-induced intoxication is relevant to the first question to be considered, that is whether it was reasonably possible that the accused believed it was necessary to do what was done in self-defence, but not to the second question: R v Katarzynski at [21].

13. Care must be exercised in analysing cases involving self-defence to avoid the “unreality of dissecting into minute detail” events that occurred in a short period of time: R v Conlon (1993) 69 A Crim R 92 at 97. Further the self-defence need not be the sole state of mind on the part of the accused at the time he or she acted, but must be the dominant state of mind on his or her part: R v Viro (1978) 141 CLR 88 at 127.

Material considered on the appeal

14. Tendered before me was the Crown bundle (Exhibit 1), which comprised of the transcripts the Local Court proceedings on 19 November 2014, 3 December 2014 and 4 February 2015 together with the 16 exhibits that were before the Local Court.

15. The events that became the subject of the charges occurred outside the front entrance of the premises and were captured on CCTV footage taken from across the road. The footage that became Exhibit 16 in the Local Court was a crucial piece of objective evidence in the case. I would describe what I saw in the footage as follows.

16. Mr Provan was forcibly removed from the premises by a security guard and Mr Traino. When the three men reached a point on the footpath close to the road, Mr Provan was forced to the ground by the security guard and that caused Mr Traino to stumble away from them. The security guard was then restraining Mr Provan who was on his knees with the security guard above him and placing downward pressure on the upper part of his body. At this time the appellant is on the footpath and standing behind the security guard and Mr Traino.

17. At about this point Ms Brighten approached Mr Provan and spoke to him. She effectively remained in close proximity from that point in time onwards.

18. Mr Provan continued to struggle and forced his way to his feet. Mr Traino and the appellant tried to lift Mr Provan’s feet off the ground in an effort to assist the security guard to restrain him, but that was unsuccessful. Mr Provan got to his feet with the security guard still having hold of him. Mr Provan was then approached by Ms Brighten, who spoke to him again. At this point the appellant was standing directly behind the security guard and in close proximity to Ms Brighten.

19. Mr Provan then turned around and pushed the appellant, whilst the security guard still had a hold of him around the abdominal region. Mr Provan then completely broke free from the security guard’s hold and moved to the right of the picture. At this time he was pursued by Ms Brighten who was trying to push him away from the other men. At about this time both the appellant and security guard raise their hands with the palms facing outwards towards Mr Provan in an effort to calm him. Mr Provan then pushed Ms Brighten aside and threw 2 punches in the direction of the appellant and the security guard. The appellant moved to Mr Provan’s right and retreated slightly. The appellant then approached Mr Provan quickly and applied a forceful kick to Mr Provan’s lower leg.

20. The appellant withdrew slightly after kicking Mr Provan and at this point he came into contact with Ms Brighten. She had her hands extended in front of her as if she was expecting to take the impact of the appellant who was backing into her. She then took hold of his shirt at the point where her hands had come into contact with him which was about in the middle of his back. She pulled him back in the same direction that he had been travelling; using his momentum against him. The appellant turned to his left and with his left hand broke the hold that she had on his shirt. The appellant raised his right hand towards Ms Brighten and was facing her. He paused, very briefly, and then struck her forcefully in the face with his right hand. She immediately fell heavily face first to the ground.

21. The appellant then immediately turned his attention back to Mr Provan. He approached him quickly and kicked him. He then punched him a number of times around the head and then proceeded to raise his knee into Mr Provan’s abdomen on three occasions in quick succession. At that time, the security guard also threw a number of punches towards Mr Provan. Mr Traino and a number of other security guards joined in restraining Mr Provan. The appellant was pulled away from Mr Provan by other security guards and escorted inside the premises.

22. Mr Provan continue to cause difficulties, but was eventually subdued by Police.

Analysis of the magistrate’s reasons and Consideration

23. The hearing of the matter was considerably shortened by agreement between the parties. The only witnesses to give oral evidence were Mr Traino and the appellant, with the other statements being admitted without objection.

24. The magistrate gave very careful and cogent reasons that referred extensively not only to the oral evidence, but to the documentary evidence as well. From my independent review of the evidence I unreservedly agree with the reasons set out by the magistrate at T2.10-T3.50 of the proceedings on 3 December 2014.

25. The magistrate then noted the evidence in the statement of Nathan Wilson, who was not cross-examined, that included the statement “this guy wearing the black shirt has gone towards the female had given her two punches to jaw area knocking her to the ground”.

26. The magistrate noted that the appellant gave a recorded interview to the Police, in which he maintained that he acted in self-defence. The magistrate noted that much of what was in the appellant’s record of interview at pages 5 and 6 was consistent with the CCTV footage. He noted a number of matters in the record of interview that were favourable to the appellant, including that:

1. Mr Provan was being aggressive and wanted to fight; and

2. the appellant had put his hands up with his palms facing outwards trying to calm Mr Provan down.

27. I would pause to note at this point that there were a number of crucial matters asserted by the appellant, particularly at page 6 of the record of interview that were not supported by the CCTV footage, including that:

1. Mr Traino and Mr Provan were involved in a scuffle;

2. Mr Traino had fallen to the ground because Mr Provan had hold of him; and

3. that the appellant had been kneeing Mr Provan in the abdomen when the appellant “felt someone either choke me or grab at my face or grab my shirt” and “Certainly…I felt a force grab me from behind”.

28. The magistrate found that the appellant’s evidence was consistent with the CCTV footage to a point, in that Mr Provan was aggressive and difficult to control. The magistrate noted the appellant’s evidence that the kick applied to Mr Provan was an attempted leg sweep, that he feared he would be dragged down and king hit and that he felt scratching on his face. The magistrate noted that the CCTV footage showed Ms Brighten pull the appellant’s shirt but not touch anywhere near his face. The magistrate noted the appellant’s evidence that he believed that he might end up on the ground and get a kicking and that he spun and struck out at a person in an “instant reaction”. The appellant said in evidence that he was defending himself and Mr Traino, but not the other security guards. The magistrate noted the appellant’s evidence in cross-examination that he was intoxicated, but not to the extent that he could not reason properly.

29. The magistrate noted the appellant’s evidence in cross-examination that he denied that there were 2 actions in dealing with Ms Brighten, in that he used his left hand to break her hold on him and then he struck her in the face. The magistrate noted that the appellant accepted that he turned and struck the person with no attention to who he was hitting and that he did not say anything to that person.

30. The magistrate noted that the appellant’s evidence was inconsistent with the CCTV footage in that the security guards had a partial hold on Mr Provan at least when the appellant returned his attention to Mr Provan, punching him in the head and kneeing him in the abdomen.

31. The magistrate recorded the appellant’s evidence to the extent that he was very fearful for his safety and that he believed that the security guards needed the assistance that he gave to subdue Mr Provan. The magistrate found that the appellant said that Mr Provan used the words “I’m going to kill you” towards him, for the first time in the witness box and that they were a belated addition to his evidence.

32. The magistrate recorded that in cross-examination the appellant denied punching Mr Provan in the head, saying instead that he was attempting to get Mr Provan in a headlock. The magistrate recorded that the appellant denied being pulled back from the fracas by a security guard, but that in his view of the CCTV footage that was clearly shown.

33. The magistrate then set out the elements of the offences. The magistrate concluded that the elements of the offences had been made out, beyond reasonable doubt and then turned to the question of self-defence, first setting out the statutory test and the law as to how it was interpreted in R v Katarzynski. No complaint was made about these legal directions on behalf of the appellant.

34. The magistrate then set out in a detailed fashion what he saw on the CCTV footage. I read the magistrate’s reasons on this issue after I prepared my own summary set out at [16]-[22] of this judgment. I am in substantial agreement with what is set out by the magistrate and the inferences that he drew from the footage, with one exception.

35. The magistrate found that the appellant was acting lawfully in trying to protect his friend Mr Traino and at times himself up and until the time he struck Ms Brighten. In my view the CCTV footage shows that when Mr Provan broke free from the security guard he threw punches towards the appellant and the security guard and that there was no threat to Mr Traino. The appellant gave evidence that he saw Mr Provan involved in a scuffle with Mr Traino and that Mr Traino fell to the ground. Presumably this evidence was the basis for his perception of the threat to Mr Traino. However, put simply, neither of these matters in fact occurred.

36. At T10.15-35 the magistrate found that the CCTV footage established that the appellant turned and saw Ms Brighten before punching her with a closed fist and that his actions were reckless. I would respectfully agree with the magistrate’s interpretation of the CCTV evidence and his conclusions on this point. Whilst it happened quickly and in the heat of the moment, the CCTV footage clearly in my view depicts the appellant pausing, albeit very briefly, facing Ms Brighten and then striking her. Accordingly, I do not accept the appellant’s evidence on this point. The magistrate also found that the appellant punched Ms Brighten, and forcefully so. He did so notwithstanding the appellant’s evidence that he struck her with an open palm and that he denied it was a punch. The magistrate seems to have at least in part relied on the statement of Mr Wilson about this. On this point, the magistrate had the advantage of seeing and hearing the appellant give evidence and make the relevant denial. Even though the magistrate did not make an express finding as to credit or demeanour, I am satisfied that he was in the best position to make that finding and I would not overturn it.

37. At T10.35-45 the magistrate found that the appellant’s response to Ms Brighten pulling his shirt was disproportionate to any threat that he may have perceived and accordingly he was satisfied beyond reasonable doubt that self-defence had been negatived in relation to the charge of Recklessly Inflict Grevious Bodily Harm. I would respectfully agree with the magistrate on this point also. I would add that I do not accept the appellant’s evidence that he feared being taken to the ground and king hit or given a kicking. The only aggressor to anyone on that night was Mr Provan and at the relevant time he was in front of the appellant. Ms Brighten was trying to calm Mr Provan down for some considerable time in the course of the events that occurred. I do not accept the appellant’s evidence that he did not see her or hear her doing so, before she pulled his shirt. The CCTV footage clearly showed her presence and on a number of occasions she was in close proximity to the appellant. Her evidence was that she was speaking to Mr Provan and the other men trying to de-escalate the situation.

38. At T10.45-11.30 the magistrate found that after Ms Brighten fell to the ground the appellant looked back and saw Mr Provan being held by Mr Traino and the security guard. The appellant approached quickly and kicked Mr Provan weakening the hold that Mr Traino and the security guard had on him. The magistrate noted that at that time Mr Provan’s T-shirt was over his face and it was at that time that the appellant punched him a number of times in the head before raising his knee into his abdomen on a number of occasions. The magistrate concluded that the appellant “went from a protector to an aggressor and a violent one at that by the end of the melee”. The magistrate was satisfied beyond reasonable doubt that by the punching of Mr Provan to the side of the head and administering the three knee strikes the appellant was not acting in self-defence or defence another, but was just being violent and his actions were totally out of proportion to any perceived threat from Mr Provan at that point in time. Again I would respectfully agree with the magistrate’s conclusions.

28. I generally found that the appellant’s evidence on this point less satisfactory than other parts of his evidence which I have in the course of these reasons already rejected. First, the CCTV footage does not support the appellant’s version that he was trying to place Mr Provan in a headlock. Second, the appellant denied punching Mr Provan in the side of the head at the time when his T-shirt was over his face when the CCTV footage clearly showed him doing just that. The appellant even refused to concede that the CCTV footage depicted him punching Mr Provan at that time. Finally, the appellant denied that he was pulled away from Mr Provan by other people and further did not accept that the CCTV footage showed that to occur.

Conclusion

40. Having conducted an independent review of the evidence, I am satisfied beyond reasonable doubt that the appellant was guilty of both offences with which he was charged for the reasons articulated by the magistrate and for the reasons that I have added.

41. Accordingly, the orders I make are as follows:

1. Appeal dismissed.

**********

Decision last updated: 03 November 2015