Christopher Dean Barbaro v The Queen

[2011] ACTCA 6

CHRISTOPHER DEAN BARBARO v THE QUEEN [2011] ACTCA 6
(25 February 2011)

APPEAL – appeal against conviction on the ground that the trial Judge misdirected the jury by failing to give a direction about the jury’s entitlement to give special consideration to witness evidence in the absence of any questioning of the witness by the Crown prosecutor – held that the trial Judge correctly and adequately directed the jury as to its assessment of the witnesses and as to its use of each witness’s evidence – appeal dismissed

APPEAL – appeal against conviction on the ground that the Crown prosecutor failed to ensure that the case was presented with fairness to the accused – held that nothing in what the Crown prosecutor said to the jury that amounted to an unfairness to the appellant – appeal dismissed

Crimes Act 1900 (ACT)

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 25 of  2010
No. SCC 471 of  2008

Judge:   Marshall J, Nield and Teague AJJ
Court of Appeal of the Australian Capital Territory
Date:    25 February 2011

IN THE SUPREME COURT OF THE       )
  )          No. ACTCA 25 of  2010
AUSTRALIAN CAPITAL TERRITORY    )
  )          No. SCC 471 of 2008
COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:      CHRISTOPHER DEAN BARBARO

Appellant

AND:              THE QUEEN
  Respondent

ORDER

Judge:  Marshall J, Nield and Teague AJJ
Date:  25 February 2011
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed.

1. On 16 February 2011 we dismissed the appeal of the appellant, Mr Christopher Dean Barbaro, against his conviction for having, on 20 July 2008, assaulted the complainant, Mr Aaron Jones, thereby occasioning actual bodily harm to him.  These are our reasons for dismissing the appeal.

1. At about 1.45 am on 20 July 2008 on the footpath near Mooseheads Nightclub on London Circuit in Canberra in the ACT the appellant punched the complainant once to his (the complainant’s) right cheek with his (the appellant’s) closed fist, thereby causing the complainant to fall to the ground, hitting his head on the footpath.

1. As a result of being punched, the complainant suffered a fracture of the right zygoma (cheekbone) and a fracture of the right maxilla (upper jaw) which required surgery to correct the fractures.  The appellant did not dispute that the injuries suffered by the complainant amounted to actual bodily harm.

1. The punching of the complainant by the appellant was witnessed by Constable (now Acting Sergeant) Natasha Ettridge and Constable Matthew Carpenter.  On seeing the complainant punched and then fall to the ground, Constable Ettridge went up to the complainant and assisted him and Constable Carpenter went after the appellant and arrested him.

1. After being arrested, the appellant was charged with having assaulted the complainant thereby occasioning actual bodily harm to him, an offence contrary to section 24 of the Crimes Act 1900 (ACT).

1. On 12 April 2010 the appellant appeared in this court before Penfold J to stand his trial for the offence.  On being arraigned with the charge, the appellant pleaded not guilty to it.  A jury of 12 jurors was empanelled and the trial commenced.  The evidence concluded on 13 April 2010, after which the Crown prosecutor and appellant’s trial counsel addressed the jury.  On 14 April 2010 Penfold J summed up the trial to the jury.  Late on the afternoon of 14 April 2010 the jury returned a verdict of guilty.

1. On 17 June 2010 Penfold J convicted the appellant of the offence and sentenced him to enter into a good behaviour order for 18 months, with the conditions that he accept the supervision of ACT Corrective Services and that, during that period, he perform 80 hours of community service work.

1. On 7 July 2010 the appellant filed his Notice of Appeal against both the conviction and the sentence, upon grounds that –

a)   The verdict was unsafe and / or unsatisfactory,

b)   The learned trial judge misdirected the jury by:

i.      Failing to give a direction about the jury’s entitlement to give special consideration to the evidence of Mr Penca in the absence of any questioning of him by the prosecutor,

ii.      Failing to give any direction about the Crown’s withdrawal of the reliance upon part of its opening.  Particulars of opening to which direction ought to have related –

I.      That the Crown had withdrawn from its case that after police approached the accused he said “he was giving my mate shit”, and

II.      Therefore no regard could be had to the alleged answer which was not in evidence.

We note that, although the Notice of Appeal included an appeal against the sentence, the grounds of appeal did not refer to the sentence.

1. On 16 February 2011 the appellant’s appeal came on for hearing before us.  On the appeal being called on for hearing the appellant’s counsel (who had not appeared for the appellant on the trial) sought our leave to file an Amended Notice of Appeal.  Counsel for the Crown (who had not appeared for the Crown on the trial) did not object to the filing of an Amended Notice of Appeal.  Accordingly, we granted leave to the appellant to file an Amended Notice of Appeal.  The Amended Notice of Appeal (which abandoned the ground of appeal that the verdict was unsafe and / or unsatisfactory) raised two grounds of appeal, namely –

a)   The learned trial judge misdirected the jury by failing to give a direction about the jury’s entitlement to give special consideration to the evidence of Mr Penca in the absence of any questioning of him by the prosecutor, in particular that they were to ignore matters put by the Crown as to the unreliability of Mr Penca’s evidence,

b)   The Crown prosecutor failed to ensure that the case was presented with fairness to the accused.

Particulars –

The Crown prosecutor in his address to the jury attacked the reliability of the witness Mr Penca when the prosecutor had not put to that witness the matters about which criticism was made.

1. The following witnesses gave evidence on the trial –

a)   The complainant;

b)   Acting Sergeant Ettridge;

c)   Constable Carpenter;

d)   Mr Daniel John Penca;

e)   The accused (now appellant);

f)    Ms Narelle Jane Jones (a character witness);

g)   Mr Sean Joseph Debenham (a character witness).

1. In addition to the witnesses, a number of exhibits were admitted into evidence (none of which is relevant to the grounds of appeal).

1. The Crown’s case at trial was that the appellant, without warning, provocation or justification, punched the complainant once to his face with such force that he fell to the ground.

1. The appellant’s case, as stated by his counsel in an opening statement to the jury, was that,

“If you see a person who’s apparently about to hit you, if you see a person who you think has hit someone else and they’re apparently about to hit you or that’s the way that you interpret what’s going on you’re entitled to protect yourself”;

In other words, his act of punching the complainant was justified because he acted in his own defence.

1. The complainant gave the following evidence. On 19 July 2008 he came to Canberra to celebrate a friend’s 21^st birthday.  At about 3 pm he and his friend started drinking alcohol.  Between about 3 pm and about 12:00 midnight he had consumed “around seven drinks” of vodka.  At about 12:00 midnight he and his friends arrived at Mooseheads Nightclub, and when into the ground floor level of the club.  He had two drinks of bourbon before leaving the ground floor level of the club to go to the first floor level of the club.  He stood in a line of people wishing to gain entry into the first floor level of the club.  At some point in time the person ahead of him in the queue (this person was identified as Mr Penca) was facing him and he wondered why the person was facing him.  He did not punch the person facing him and he did not turn “to throw a punch at” the appellant.

1. Acting Sergeant Ettridge gave the following evidence.  At about 1.20 am on 20 July 2008 she and Constable Carpenter arrived in the vicinity of Mooseheads Nightclub.  She saw a queue of people lined up to gain entry into the ground floor level of the club and another queue of about 10 people lined up to gain entry into the first floor level of the club.  She saw the complainant standing in the queue of people lined up to gain entry into the first floor level of the club.  She thought that the complainant was not with anybody, that he was not talking with anybody and that no one was “face to face” with him.  She did not see him raise his arms or fists or act in any aggressive manner.  She saw the appellant come into her field of vision, walk up to the complainant, punch the complainant once to his face and walk off.  She saw the complainant fall to the ground.  She went to the complainant to assist him and Constable Carpenter went after the appellant to arrest him. (We note that, notwithstanding the appellant’s trial counsel’s criticisms of her failures to make notes, to identify witnesses and to obtain security camera film of the incident, the appellant’s trial counsel did not suggest to her that she had not seen what she said she saw.)

1. Constable Carpenter gave the following evidence.  In the early hours of 20 July 2008 he and (then) Constable Ettridge arrived in the vicinity of Mooseheads Nightclub.  He saw a queue of 10 to 20 people lined up to enter the upstairs section of the club.  He saw the complainant standing in the queue.  He was about five metres from the complainant.  The complainant did not appear to be aggressive, he had his hands by his sides, he was not standing face to face with anybody, he was not involved in an altercation with anybody and he was not fighting with anybody.  He saw the appellant walk about five paces up to the complainant and punch the complainant once on the right side of his face with his (the appellant’s) closed right hand, causing the complainant to fall backwards and to his left side onto the ground.  (We note that, as with Acting Sergeant Ettridge, the appellant’s trial counsel did not suggest to Constable Carpenter that he had not seen what he said that he saw, although he was extensively cross-examined about his failure to make full and complete notes and his failure to properly or adequately investigate the incident.)

1. Mr Penca was called (after much discussion with the trial Judge in the absence of the jury) as a witness by the Crown prosecutor.  Mr Penca, after being asked only his name and occupation by the Crown prosecutor, gave the following evidence on cross-examination by the appellant’s counsel.  He had known the appellant for about seven or eight years, from about year eight at school.  He had been drinking with two friends in the upstairs (first floor) level of Mooseheads Nightclub when one of his friends became involved in an argument with another man.  He stepped between his friend and the other man to stop the argument.  The “bouncers” told him and his friends to leave, which he did.  When he was on the footpath outside the club, he saw the appellant and they had “a chat” together.  He then saw a man (this man was the complainant) who he thought was the man who was involved in the argument with his friend “upstairs” in the club.  He walked up to the man with the intention of asking him “what was happening upstairs” and he got “pretty close” to him and made “eye contact” with him, whereupon the man “hit (him) in the mouth”.  He bent down and put his hand to his mouth and then the appellant punched the man, who fell to the ground.  He saw the appellant walk “quickly” away, before being arrested after having walked “probably” 10 steps.  (We note that Mr Penca’s evidence confirms that police were in close proximity to the incident when the incident occurred.)

1. The appellant gave the following evidence.  He met Mr Penca outside the front of Mooseheads Nightclub.  He had known Mr Penca from when he was aged 12 or 13 years.  He and Mr Penca had “a chat” for a few seconds before they went towards the line of people waiting at “the stairs” to go upstairs to the first floor level of the club.  The line of people was “a short line”.  The complainant was in the line of people “towards the back of the line”.  Mr Penca was on his left side (so that he was on Mr Penca’s right side).  As they approached the complainant, who had been facing the road, he “turned” to face them.  Then, when Mr Penca was “within an arm (sic) length” of him, the complainant punched Mr Penca to his face, causing Mr Penca to stagger backwards and to grab his face.  Then, when the complainant turned towards him, he “just thought I was next” and he “hit him (the complainant) with my left hand to the right side of his face”, causing the complainant to stagger backwards and then fall to the ground.  He “then checked to see if (the complainant) was all right”, by walking over to him and looking at him, before walking away, and then being arrested by police.  (We note that the appellant said that he and Mr Penca “were both walking to the Mooseheads’ line and we were side by side.  He was on my left”, whereas Mr Penca said that when he “walked towards (the complainant) with the intention of asking him, like what was happening upstairs”, he had “no idea” as to the whereabouts of the appellant, he “didn’t see him”.)

1. The issue thus joined between the Crown and the appellant was not whether the evidence satisfied the jury beyond reasonable doubt that the appellant had assaulted the complainant causing him to suffer actual bodily harm, but whether the evidence satisfied the jury beyond reasonable doubt that the appellant had not acted in his self defence.

1. The law recognises the right of an accused person to act in self defence against an attack or the threat of an attack.  This right arises where the person believes that his or her use of force is necessary in order to defend him or herself against an attack or the threat of an attack by another person or other people and what the person did in defending him or herself against that attack or the threat of it was a reasonable response in the circumstances as he or she perceived them to be.  The exercise of the right of self defence is not something that the accused person must prove, rather it is something that the Crown must eliminate by proving beyond reasonable doubt that the accused person did not act in self defence.  The Crown may prove that the accused person did not act in self defence by proving beyond reasonable doubt one or other or both of –

a)   The accused person did not believe at the time of doing what was done that it was necessary for him or her to act in order to defend him or herself; or

b)   If it is reasonably possible that he or she had such a belief, nevertheless the accused person’s act was or acts were not a reasonable response to the attack or the threat of it as he or she perceived it to be.

1. As to the accused person’s belief that he or she had to act in order to defend him or herself, the circumstances as the accused person perceived them to be at the relevant time must be considered.  The test is a subjective test.  It is the accused person’s perception of the prevailing circumstances that must be considered in determining whether what he or she did was necessary in his or her self defence.  The prevailing circumstances should not be looked at with the benefit of hindsight, but in the realisation that calm deliberation and decision cannot always be expected in the circumstances in which the accused person said that he or she found him or herself at the time.  If the accused person had, or if it is reasonably possible that he or she had, the belief that he or she had to act in his or her self defence, then it does not matter that that belief may have been mistaken.  If the Crown proves beyond reasonable doubt that the accused person did not have the belief that his or her act was or acts were necessary in his or her self defence, then the Crown has eliminated self defence as an issue.

1. If the accused person had, or it is reasonably possible that he or she had, the belief that it was necessary to act in his or her self defence then the person’s response to the attack or the threat of it as he or she perceived it to be must be considered.  The test is an objective test.  If the accused person’s response was reasonable in the prevailing circumstances, as he or she perceived them to be, then the Crown would have failed to eliminate self defence.  However, if the Crown proves beyond reasonable doubt that the accused person’s response to those circumstances was not reasonable, then the Crown would have eliminated self defence as an issue.

The first ground of appeal – the learned trial Judge misdirected the jury by failing to give a direction about the jury’s entitlement to give special consideration to the evidence of Mr Penca in the absence of any questioning of him by the Crown prosecutor, in particular that they were to ignore matters put by the Crown as to the unreliability of Mr Penca’s evidence.

1. In her summing up to the jury, the trial Judge directed the jury as follows –

“the facts of the case and the verdicts that you give are for you and you alone because as I said at the beginning of this trial you alone are the judges of the facts.”

“I have nothing to do with the facts or with your decisions in relation to them.  I have nothing to do with what evidence is to be accepted by you as truthful or what evidence is to be rejected by you as untruthful.  Nor indeed with what weight you might give to any one particular part of the evidence or what inferences you draw from that evidence.”

“It’s for you to assess the various witnesses and decide whether they were telling the truth.  You’ve seen each of the witnesses as they’ve given evidence.  It’s a matter for you entirely whether you accept that evidence.”

“Next I say this, your ultimate decision as to what evidence you accept and what evidence you reject may be based on all manner of things including what the witness has to say, the manner in which the witness said it, how the witness responded to the testing of that evidence and the general impression which the witness made upon you when giving evidence.”

“In relation to accepting the evidence of any witness you are not obliged to accept the whole of that witness’ evidence.  You may, if you think fit, accept part and reject part of the same witness’ evidence.  The fact that you do not accept part of the evidence of a witness does not mean that you must necessarily reject the whole of that witness’ evidence.  It does not mean that (sic) should not accept the rest of that evidence if you think it’s worthy of acceptance.”

1. We consider that the trial Judge correctly and adequately directed the jury as to its assessment of the witnesses and as to its use of each witness’s evidence.

1. Although we accept that a trial Judge may comment that the jury might consider a particular witness’s evidence to be central to the Crown’s case, or another witness’s evidence to be peripheral to the Crown’s case, or yet another witness’s evidence to be neutral in the Crown’s case, a trial Judge cannot direct a jury to give special consideration to any one witness’s evidence, as the assessment of each and every witness and the witness’s evidence in the trial is solely for the jury.

1. The evidence of Mr Penca was the evidence of one of five witnesses to the incident in which the appellant punched the complainant.  The jury was entitled to assess Mr Penca and his evidence in the same way that it assessed the other witnesses to the incident and their evidence.  The fact was that the evidence of the complainant, Acting Sergeant Ettridge and Constable Carpenter was in conflict with the evidence of Mr Penca and the appellant.  The jury, as the judges of the facts, was entitled to reject the evidence of Mr Penca (and that of the appellant) where it was in conflict with the evidence of the complainant, Acting Sergeant Ettridge and Constable Carpenter.

1. In the course of his address to the jury, the Crown prosecutor said –

“The only issue, and I emphasise, the only issue before you today for your deliberation is whether he acted in self defence.  There is no issue that the complainant was assaulted, sorry, was punched.  There is no issue that it was Mr Barbaro who had in fact punched the complainant.  And again I repeat that the only issue before you is whether he acted in self defence.

The Crown, as you must have gathered from the evidence that was led, the Crown case is that it is not a case of self defence.  You heard the evidence from the three prosecution witnesses.  That was the complainant himself, you heard from Constable Ettridge and then you heard from Constable Matthew Carpenter.  If you accept any one of them as a witness of truth it will be open to you to find the accused guilty of the offence.

As I have emphasised on the issue of self defence, to consider the defence of self defence you really have to make a very primary point that the complainant had assaulted Mr Penca.  If you do not, if you do not find that Mr Penca was assaulted by the complainant then, of course, the whole issue of self defence          falls.

So your first finding will have to be that Mr Penca was in fact assaulted by the complainant.  You’ve heard evidence, you’ve heard Mr Barbaro, you’ve heard Mr Penca.  The reason why Mr Barbaro says he assaulted was because he saw that Mr Penca was assaulted and therefore he feared that he may be the next one.

So if you, members of the jury, if you find that the complainant did not assault Mr Penca then there’s no need to go any further and it will be open to you to exclude the defence of self defence and find the accused guilty of the offence.”

1. As to what the Crown prosecutor said to the jury, the trial Judge directed the jury that–

“There’s one particular thing I need to say ... having regard to something that the prosecutor said to you yesterday.  He said that if you accept any one of the main prosecution witnesses, that is Mr Jones, and the two police officers, as a witness of truth it is open to you to find the accused guilty.

However, that’s a dangerously misleading statement for this reason.  It’s entirely possible that in this case all the witnesses, both the prosecution and the defence witnesses, have told you the truth to the best of their observations at the time and their recollections now.  It is likely, for instance, that the two police officers have been entirely truthful in recounting what they believe they saw outside Mooseheads nearly two years ago.  Among other things their certainty back then might account for their failure to pursue other evidence such as CCTV footage or other witnesses.

But for all sorts of reasons to do with the speed with which events unfolded that night, the number of people on the footpath outside Mooseheads and the general inability of human beings to take in everything that is going on around them at any point they might have missed some important split second aspects of the events they were observing.

The fact that they appear to have missed some elements on which the complainant and the accused as well as Mr Penca agree suggests that this is a real possibility.  You will have noticed also that the three young men involved all admit to gaps in their memories of the events which you might think is           unsurprising given how much alcohol all of them had consumed in the preceding few hours.

What that all means is first, that there may be no need to try and choose between the various witnesses in terms of who is telling the truth.  And secondly, and most importantly in light of the prosecutor’s comments, it means that believing that a particular witness is telling the truth does not mean being satisfied beyond reasonable doubt that everything happened exactly and only as that witness has said.

Thus, simply accepting that one or more of the complainant and the two police officers was a witness of truth would not be enough for you to find Mr Barbaro [guilty].  You would need to conclude not only that the relevant witness was telling the truth and he or she saw and remembered it but also, first, that that witness saw everything that went on.  And secondly, that you do not accept any of the evidence of any of the other witnesses to the extent that their evidence would raise any reasonable doubt that events happened exactly and only as your chosen witness testified.  The question is not nearly as simple as whether you believe a particular witness was telling the truth.”

1. We consider, whether or not what the Crown prosecutor said to the jury was correct or appropriate, that the trial Judge adequately directed the jury as to how it might consider the evidence of the witnesses concerning whether or not acceptance of the evidence of one of the complainant or either of the police would allow the jury to find the appellant to be guilty.

1. The Crown prosecutor said to the jury that the issue for the jury was “whether he (the appellant) acted in self defence.”  We consider that this was inaccurate, because the issue for the jury was (as we said in paragraph 19 above) whether the evidence satisfied the jury beyond reasonable doubt that the appellant had not acted in his self defence.

1. As to self defence, the trial Judge directed the jury as follows –

“And finally, that the accused’s conduct was without lawful excuse.  In this case that means that the accused did not act in self defence.  That is either the accused did not believe that it was necessary in self defence to do what he did or that there were no reasonable grounds for the accused to believe that it was necessary in self defence to do what he did.”

“This (sic) is trial is all about self defence.  You will see from the statement of the elements that once self defence has been raised as a real possibility, as it clearly has in this trial, it is for the prosecution to rule it out beyond reasonable doubt.  It is not for the accused to prove that he acted in self defence.  It is for the prosecution to prove beyond reasonable doubt that he didn’t.  If the prosecution does not prove that then Mr Barbaro is entitled to be acquitted of the charge before you.

Mr Barbaro acted in self defence if he believed on reasonable grounds that it was necessary in self defence to do what he did.  If he had that belief and there were reasonable grounds for it he is entitled to be acquitted.  If you the jury are left in reasonable doubt whether Mr Barbaro had that belief or whether there were reasonable grounds for it then he is also entitled to be acquitted. 

There are two parts to the test for self defence and so there are two ways in which the prosecution can prove beyond reasonable doubt that Mr Barbaro did not act in self defence.  The prosecution must prove beyond reasonable doubt either that Mr Barbaro did not believe that it was necessary in self defence to do what he did or that there were no reasonable grounds for Mr Barbaro to believe that it was necessary in self defence to do what he did.

One of the questions that those tests raise in this case is the level of force used by the accused.  The issue does arise here of whether the force used by Mr Barbaro was proportionate to the threat offered.  That issue is relevant to the fundamental issues as I’ve set them out for you but it’s not a separate issue.

In such a case, as part of ruling out self defence, the prosecution must establish that the force in fact used by Mr Barbaro was out of all proportion to any attack on him which he could reasonably have believed was threatened by Mr Jones.

You should also bear in mind that a person defending himself cannot always weigh precisely the exact action which he should take in order to avoid the threat which he reasonably believes he faces at the time.  You need to take a practical approach to this question, considering the whole of the circumstances and noting that the degree of force used is only part of the whole picture.

In particular you should give proper weight to the situation in which Mr Barbaro found himself and the absence of opportunity for calm deliberation or detached reflection.  For that purpose you must consider the circumstances as Mr Barbaro perceived them to be at that time of that conduct and look at the question, not with the benefit of hindsight, but in the realisation that a calm reflection cannot always be expected in a situation such as Mr Barbaro found himself in.

In relation to self defence I also need to comment on what the prosecutor said to you about this issue yesterday.  He said, in effect, that before you could consider self defence you needed to find that Mr Penca was assaulted by Mr Jones.  However that’s not a correct statement of how the onus of proof operates in relation to self defence.  Once self defence is raised, as in this case by any of the evidence, the prosecution is obliged to rule it out as part of proving the charge beyond reasonable doubt.

The accused is still not obliged to prove anything.  But the prosecution has not disproved the assault, the original alleged assault, beyond reasonable doubt just because the defence hasn’t proved beyond reasonable doubt that it did happen.  I repeat, it is not up to the defence to prove anything in this case whether beyond reasonable doubt or at all.

The difference between the prosecution proving something and the defence not disproving is fundamental.  For instance, if there were a question in this case whether the accused had even been in Civic on the night of the incident you would all understand that it would have been for the prosecution to prove that the accused was there not for the accused to prove he wasn’t.  And you would all understand the difference between those two things.

For self defence, once the evidence raises the possibility of self defence, the prosecution must rule it out.  The accused does have to prove the elements of self defence.  The prosecution has to disprove at least one of them.

That is you could be uncertain whether Mr Penca was hit by Mr Jones without being satisfied that the prosecution has proved beyond reasonable doubt either that Mr Barbaro did not believe that it was necessary in self defence to (sic) what he did or that there were no reasonable grounds for Mr Barbaro to believe that it was necessary in self defence to do what he did.”

1. We consider that the trial Judge correctly and adequately directed the jury as to whether it could be satisfied beyond reasonable doubt that the appellant had not acted in his self defence.  We consider that the trial Judge left the jury without any doubt as to what the Crown had to prove beyond reasonable doubt to eliminate self defence as an issue in the trial.

The second ground of appeal – the Crown prosecutor failed to ensure that the case was presented with fairness to the accused.

Particulars –

The Crown prosecutor is his address to the jury attacked the reliability of the witness Mr Penca when the prosecutor had not put to that witness the matters about which criticism was made.

1. In his address to the jury the Crown prosecutor said –

“Now, can I just say this, ladies and gentlemen, members of the jury, that if you find the assault as described by the three Crown prosecution witnesses, which was the complainant and the two police officers, and reject the accused, and as I said earlier on the matter can stop there, and it is open to you (sic) make a finding that the accused is guilty.

However, it is also open to you to find that Mr Penca and the complainant had an altercation.  And if you find that the complainant assaulted Mr Penca it’s only then, and as I said earlier on and it is so important for me to re-emphasise, it is only then you have to consider self defence.  Because, as I said earlier on, I’m sorry if I sound to be repetitive, but it is so important for me to get this conveyed to you members of the jury that the whole concept of self defence is relied upon on the assault by the complainant on Mr Penca.

Now before you accept that the complainant assaulted Mr Penca you will have to say, in view of the evidence both by Mr Barbaro and Mr Penca, that the accused of that build was prepared to confront two men of much more solidly (sic) built than him.  This nightclub at that time of the morning you know what happens.  At that time of the morning, according to the defence evidence, the defence (sic) cases, that the complainant saw these two much more largely built persons and yet he had the, if I could use the word guts, to punch Mr Penca.

And it would be also relevant for you to also keep in mind in considering that aspect is that it was Mr Penca who wanted to (sic) the confront the complainant.  Mistakenly or otherwise he thought he was one of them who was inside who was trying to, and I think he demonstrated that point.  So it was Mr Penca, if that’s the correct pronunciation, Mr Penca was the one who had if any issue with the complainant.  It wasn’t that the complainant had any issue with Mr Penca.  That’s in evidence and you might remember I have re-examined, I have made it clear, that he had no issues, he had no problems with Mr Penca.  Mr Penca mistakenly or otherwise had an issue with the complainant.

In the event, ladies and gentlemen, members of the jury, of your finding – I’m putting all these options open.  In the event of your finding that the complainant did assault Mr Penca, and my submission would be that could not be the case for the reasons I have already given, however if you do, if you do then you will have to consider whether the force used was proportionate to the circumstances.  No doubt in due course you will be receiving directions from her Honour on these issues as to what is proportionate and what is not.

Penca in this case, Mr Penca, you might have noticed, I did not ask him any questions.  He was just made available.  The prosecution calls the witnesses that they consider they want to rely upon.  But it is my duty if there is anyone else available it’s not a matter for me whether I want to ask any questions or not but I have to make available for court.  That is one of the duties as a prosecutor, I have to discharge.  And that is the reason why, you must have noticed, and must have been wondering why have I put him in the box and haven’t him any questions?  And that is the reason because I’m not relying on him as part of my case.

There are other issues, members of the jury, about first of all Mr Penca, he gave evidence and you will recollect how he described he was facing the complainant and a punch was thrown from his right-hand side and a bit from behind him like that.  That is not quite consistent with what Mr Barbaro had said.  You might remember Mr Barbaro is not talking about behind him, side by side on his right.”

1. We fail to see, in what the Crown prosecutor said to the jury about the evidence of Mr Penca, that the Crown prosecutor “attacked the reliability of” Mr Penca.  We consider that the Crown prosecutor was entitled to tell the jury that the Crown did not rely upon the evidence of Mr Penca in proof of its case against the appellant.  We do not see anything in what the Crown prosecutor said to the jury that amounted to an unfairness to the appellant.

1. We note that the appellant’s trial counsel said to the jury –

“You might think that there are some problems in judging to a beyond reasonable doubt standard based on what the police say but particularly when you hear Mr Penca’s evidence.  What was one of the things about Mr Penca’s evidence?  Was there a single question to challenge what he had to say?  A single question to challenge what he had to say or to clarify what he had to say?

Not a single question was asked of him to challenge him in what he had to say.     Not a single question was put to him saying you’ve got that wrong or can you clarify this or can you clarify that.  Not an ounce of challenge was put to him.  Not a single suggestion was made to him that he’d not been hit.  Not a single question was put to him to suggest he wasn’t taken by surprise by Mr Jones’ actions.  Not a single question was put to him to suggest to him that he was being untruthful or was somehow mistaken in his evidence.  Not a single question.  Not even a single question to him to suggest that when he said he          was told to fuck off by the police that he was somehow wrong about that.

Where there’s no challenge made to Mr Penca do you think it’s a pretty big call to say beyond reasonable doubt we should throw out about what he’s got to say?  It’s Mr Penca who fills in the blanks of what Mr Jones has to say isn’t it?  It’s Mr Penca who confirms what it is that Mr Barbaro’s got to say.”

1. Also, we note that the trial Judge directed the jury that –

“First I need to repeat what I said to you on Monday and that is that what counsel, and indeed what I say in this trial, is not evidence.  The only evidence you can consider is what you’ve heard from the witnesses in the witness box and what you see in the exhibits that are tendered.”

1. We do not have any doubt that the appellant’s trial was a fair trial according to law.  We are comforted in our own view by the fact that the appellant’s trial counsel did not seek any redirections or further directions from the trial Judge.

1. For these reasons, we dismissed the appellant’s appeal against his conviction and confirmed the sentence of the trial Judge, with that sentence to commence on           16 February 2011.

I certify that the preceding thirty eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date:    25 February 2011

Counsel for the appellant:  Mr K Archer
Solicitor for the appellant:  Kamy Saeedi Lawyers
Counsel for the respondent:  Mr A Doig
Solicitor for the respondent:  ACT Director of Public Prosecutions
Date of hearing:  16 February 2011 
Date of judgment:  25 February 2011