Colosimo v Director of Public Prosecutions (NSW)

[2006] NSWCA 293

New South Wales

Court of Appeal

CITATION:	COLOSIMO & ORS. V. DIRECTOR OF PUBLIC PROSECUTIONS (NSW) [2006] NSWCA 293
HEARING DATE(S):	15 September 2006
JUDGMENT DATE:	2 November 2006
JUDGMENT OF:	Handley JA at 1; Hodgson JA at 2; Ipp JA at 28
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	CRIMINAL LAW - Appeal - Question of law - Self-defence - Whether evidence before magistrate sufficient to raise self-defence - Need for evidence capable of indicating, as a matter of legitimate reasoning, a reasonable possibility that the accused had the requisite belief and perception - In absence of evidence from the accused, need to consider what beliefs and perceptions could reasonably be had.
LEGISLATION CITED:	Crimes Act 1990 ss.93C, 418, 419 and 422
CASES CITED:	Douglas v. R [2005] NSWCCA 419 R v. Duncan [2006] QCA 46 R v. Imadonmwonyi [2004] VSC 361 R v. Mekic [2004] SASC 44 R v. Nguyen (1995) 36 NSWLR 397 Zecevic v. Director of Public Prosecutions (1987) 162 CLR 645
PARTIES:	Julius Colosimo - 1st claimant Sergio Colosimo - 2nd claimant Vincenzo Colosimo - 3rd claimant Director of Public Prosecutions (NSW) - opponent
FILE NUMBER(S):	CA 40070/06
COUNSEL:	Mr. D.F. Jackson QC with Mr. D. Pullinger and Mr. J. Hogan-Doran for applicants Mr. P. Lakatos SC for opponent
SOLICITORS:	Anderson Boemi, Round Corner for applicants Solicitor for Public Prosecutions, Sydney for opponent
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC12745/04
LOWER COURT JUDICIAL OFFICER:	Johnson J
LOWER COURT DATE OF DECISION:	25 August 2005
LOWER COURT MEDIUM NEUTRAL CITATION:	None

CA 40070/06
SC 12745/04

HANDLEY JA
HODGSON JA
IPP JA

Thursday 2 November 2006

COLOSIMO & ORS. V. DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

Judgment

1 HANDLEY JA: I agree with Hodgson JA.

2 HODGSON JA: On 28 July 2004, each of the appellants was convicted by Mr. C. Longley, Magistrate, upon a charge of affray under s.93C of the Crimes Act 1900; and each of them was fined $1,500.00.

3 The appellants appealed to the Supreme Court pursuant to s.52(1) of the Crimes (Local Courts Appeal & Review) Act 2001, which provides for appeals as of right on grounds involving questions of law. On 25 August 2005, Johnson J dismissed their appeal.

4 The appellants then applied for leave to appeal to the Court of Appeal, and their application was heard on the basis that, if leave was granted, the appeal would be determined without further argument. At the conclusion of oral argument, the Court granted leave to appeal.

CIRCUMSTANCES

5 In the early hours of Monday 18 November 2002, the three appellants, who are brothers, together with a Mr. Bensley and three women, attended the Lagoon Bar at the Star City Casino. The charges on which the appellants were convicted arose out of an incident on that occasion involving security officers of the casino, in particular Messrs. Wood, Webb, Bannister, Bracamonte, Heaney and Ogston. The prosecution case was based on oral evidence from a number of witnesses, including the security officers, and a compilation video of the incident. The appellants did not give evidence.

6 The prosecution evidence was to the following effect. Mr. Webb assessed one of the appellants as being intoxicated, and directed him to leave the premises. The two other appellants objected to this, and they screamed at him and racially abused him. Mr. Webb then directed them all to leave, and two of the appellants then further abused him and invited him outside to fight. As the appellants were moving towards the door, one of them said to Mr. Bracamonte “ well move me”, and Mr. Bracamonte pushed him towards the door. Mr. Bracamonte was then pushed hard from behind by another of the appellants, punches were then thrown at him, he was tackled from behind into some tables and chairs, put in a headlock and bitten in the back of the head, and punched and kicked to the head. He was left with bruising of the face, a fractured jaw leading to the removal of two wisdom teeth, scarring on the inside and outside of his mouth, a bite injury to the back of his head and a laceration over his left eye. There was a general fracas involving the three appellants and security officers that lasted about one and a half minutes. Mr. Ogston observed Mr. Bracamonte and one of the appellants hitting a table and land on a stage, with the man landing on top of Mr. Bracamonte. Mr. Ogston tried to pull the person off, but as he did so, he was himself grabbed from behind around his throat. He was not able to breathe and started to lose consciousness. He received scratches around his neck and a black eye. There was also evidence of injuries to Mr. Bannister and Mr. Heaney.

7 The first appellant was charged with maliciously inflicting grievous bodily harm on Mr. Bracamonte, assault occasioning actual bodily harm on Mr. Bracamonte, assault on Mr. Wood, and affray. The second appellant was charged with maliciously inflicting grievous bodily harm on Mr. Bracamonte, assault occasioning actual bodily harm on Mr. Bannister, assault occasioning actual bodily harm on Mr. Heaney, and affray. The third appellant was charged with assault occasioning actual bodily harm on Mr. Ogston, and affray.

MAGISTRATE’S DECISION

8 The Magistrate was not satisfied beyond reasonable doubt of the guilt of any of the accused on any of the charges other than affray, because he was not satisfied beyond reasonable doubt as to the identification of which of the appellants did which of the relevant acts. He gave the following reasons for his findings of guilty on the charge of affray:

The three defendants are charged, and were charged initially, with the charge of affray, which comes under s.93C of the Crimes Act. And it is not a particularly lengthy section, but a person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of an affray. If two or more persons uses or threatens the unlawful violence it is the conduct of them taken together that must be considered for the purposes of subsection 1. For the purposes of this section a threat cannot be made by the use of words alone. No person of reasonable firmness need actually be, or be likely to be, present at the scene, and lastly the affray may be committed in private as well as in public places. Well it seems if that termination does not apply, well – that is whether it is or isn’t in a public place, but for the purposes of the exercise I suppose, it certainly is a public place.

Now firstly in my view there are two or more persons, there are three, in fact there were four. I am dealing with three. And it is their conduct in my view taken collectively which, if viewed in that collective circumstance, would be conduct which would be considered for the purposes of s.93C(1).

One aspect of, of course the submission made by Mr Bellanto in relation to his respective clients, is that they are each of good character. And of course as a matter of law I am required to take that into account in assessing whether they are persons who would be likely to commit this offence. They are each young persons, and from a criminal history point of view, are persons of good character.

Now this event, and I will use that term again, started it is fair to say in my view somewhat innocently, inoffensively, that is the detection of one of the young males, which I believe to be Vincenzo, coming in contact with a security door. He is then, as is required it seems, by the Casino in implementing the Liquor Act Provisions conducted a responsible service of alcohol assessment. They did so, and did so most properly.

Shortly before that assessment took place, and dare I say after the assessment took place by Mr Webb, it was the involvement of three others who then took it upon themselves to question the decision that had been made. Now true it is the video indicates visual only and not audio, but it is very apparent to me in seeing and viewing it, I think I can say repeatedly, that there was significant disquiet from the men in black. And I am using those terms, because at this stage of the proceedings [sic] did not know who they were, apart from the fact that there were three members of the one family. And it is clear that they were not pleased with the decision that had been made. But it seems with the ongoing conversation that whilst reluctant they certainly appeared to accept it.

All of the security which happened to be at that stage Mr Bracamonte, Mr Webb and Mr Wood, having accepted their indication that they were going to leave, moving back in to the Lagoon Bar, and it is obvious that there was a conscious effort on behalf of at least one of the security officers to make sure that they were heading in the right direction, so to speak. Now what flowed from that was an indignation from one of the men in black regarding the speed with which they were required in my view to leave. That indignation resulted in the behaviour of one of them in pushing, for reasons that are not obvious to me, the security officer in the back, and it was a most violent act in my view in those circumstances, unnecessary. So then, as a result of that, the security officer turns around and with more good luck than good management ducks a punch from one of the men in black. So then there is what happens over a very short period of time is an involvement by these three officers, the three men in black, towards Mr Webb and Mr Bracamonte.

Now it has been urged upon me that there has to be a degree of common purpose. I do not see why that needs to be, in my view, an element of this offence. But even if it was it seems to me that the actions of one precipitated the actions of others. Now it was my determination that the identification of particular persons involved in particular acts could not be proved to the requisite standard. It was urged or submitted to me that there was no evidence of implication beyond reasonable doubt. There certainly was evidence that it was not in my view sufficient to satisfy the elements of those individual charges.

The evidence, which is on the tape, and which has been given in evidence by Mr Bracamonte, Mr Webb, is that he, Mr Bracamonte, was kicked, he was punched, unlawful acts. True it is on the available evidence I could not be satisfied to the requisite standard of the individual charge of grievous bodily harm. There was evidence that both pictorially and in a group situation, where Mr Bracamonte had received a bite. There was evidence in relation to Mr Bannister. He enters because he sees what is happening, and he drags off a person, who then in attempting to get out of that hold, uses his hands on the eyes of Mr Bannister.

A male grabs Mr Ogston, puts him in a choke hold. The result from that is that efforts are undertaken by security to release that hold. The result of that is a person, a man in black comes in and starts punching Mr Heaney.

Now it has been urged upon me that amongst other things that the security officers could not be described as persons of reasonable firmness, because that is their job, they are there, and should not be the yard stick, which was the submission that was made. But provisions of the Statute provide that persons do not have to be of reasonable firmness, but he might have to be present. Now it has also been urged upon me that these officers – I withdraw that, these three persons did not apply their minds to the situation at hand. Well on the available evidence to me that is exactly what they did. They applied their minds to the situation. It has also been urged that they were reactive. To me, that is a concerted effort on behalf of the defendants to deflect the blame. Right from minute one they blame them. True it is and I accept this submission that the event was shut down relatively quickly. It has been urged upon me that these two people who were having a stickybeak could be used I suppose whilst .. (not transcribable) .. were not used as a yardstick but certainly they would not be in fear of their safety. It is true to say that most of the actual events of aggression towards the security officers had passed.

It seems to me on the available evidence, whilst I could not be satisfied in the discrete offences as to who acted against any specific officer, in my view I do not have to find that. It is their actions which in my view are unlawful and when taken together, a person, if they were there, in my view would have a significant fear for his or her safety and in my view the evidence which has been given both orally and by way of video evidence does not show to me that these persons were acting in self-defence. I FIND EACH OF THE OFFENCES PROVED BEYOND REASONABLE DOUBT.

PRIMARY JUDGE’S DECISION

9 The appeal to the Supreme Court raised a number of grounds, including the ground that the Magistrate erred in law when imposing an onus on the appellants in his consideration of the issue of self-defence. The primary judge set out the statutory provisions concerning self-defence, referred to some authorities including R v. Nguyen (1995) 36 NSWLR 397, and continued:

98 It will be recalled that the Plaintiffs did not give evidence in the present proceedings. Nor did they participate in interviews or give statements to investigating police. Accordingly, there was no version from them before the Court concerning their actions and their state of mind at the time of the relevant incident. Acting Sergeant Buttrose gave evidence that, in general conversation after the incident, one of the men “and I couldn’t tell you which one, was saying they [the security officers] started it” (Transcript, 20 July 2004, T35.35).

99 Mr Bellanto QC submitted that self defence was raised by his cross-examination of Mr Bracamonte (Transcript 22 July 2004, T68.42):

“Q. And thereafter what occurred was really a series of acts where these various men were either defending themselves from violence from you or your colleagues or defending each other, helping each other?

A. That could be a possibility, yes. We get that all the time but. Of course when there’s a group there [sic] always going to be always involved because they don’t want their friend getting asked to leave. Nobody’s intoxicated when we asked them to leave they were all straight, that’s the thing.”
100 Reliance was also placed upon the later cross-examination of Mr Bracamonte (Transcript, 22 July 2004, T89.19):

“Q. Would you say the way this incident developed was really a sequence of events one man going to the aid of another?
A. In what way?

Q. Security personnel were going to the aid of security personnel?
A. Yeah and – yeah each one.

Q. And the men in black were going to the aid of men in black?
A. Yeah.

Q. In the course of people going to the aid of each other that’s how the whole thing sort of started and how it developed?
A. No, it already started before everyone arrived.

Q. It really started I suggest in a physical sense when you applied directional movement didn’t it?
A. No, necessarily, no.

Q. Do you agree with that?
A. Yeah.

Q. That’s how it really started?
A. Yeah. But it also started too because their behaviour as well.”

101 The Plaintiffs relied upon the cross-examination of Mr Ogston to the following effect (Transcript, 23 July 2004, T17.6):
“Q. From what you could see it was a case of including the security people and the men in black, it was really a case of those present going to the aid of another. Do you agree with that? Do you understand what I’m saying? The whole thing escalated by one person going to the aid of another person, another person going to the aid of the person who was going to the aid of the first persona [sic] and it was like a chain reaction?
A. Yeah.
Q. Do you agree with that?
A. Yes I do.”


102 Mr Bellanto QC relied upon evidence that one or more of the security officers had used “directional force” or “directional movement” towards one of the “men in black” and that this evidence was relevant to the self-defence issue. He complained that the learned Magistrate had not addressed the “directional force” issue in his judgment. His Honour did advert to this part of the evidence in his finding that “it is obvious that there was a conscious effort on behalf of at least one of the security officers to make sure that they were heading in the right direction, so to speak” . Mr Bellanto QC complains that this finding did not have regard in an appropriate way to what he submitted was the significance of the “directional force” evidence in the case.

103 Mr Bellanto QC submitted that the evidence raised self defence, including the defence of others being the other “men in black” . In these circumstances, the Plaintiffs submitted that self defence was raised and was not negatived beyond reasonable doubt by the prosecution. Further, it was submitted that the learned Magistrate had misdirected himself on the question of self defence so as to constitute an error in law.

104 Mr Lakatos submitted that there was no evidence in the proceedings which gave rise to a consideration of self defence. The assertion was advanced in cross-examination of witnesses but not acceded to by those witnesses. The tenor of the evidence of the security officers so cross-examined was that they had been set upon by the Plaintiffs. The Defendant submitted that this was far removed from any legitimate issue of self defence.

105 Mr Lakatos submitted that the evidence, as it stood, gave no support to the proposition that the Plaintiffs had the belief set out in s.418(2) Crimes Act 1900 . Absent such material, the prosecution bore no onus of proof at all.

106 Further, Mr Lakatos submitted that his Honour’s concluding comments indicated clearly that this was his view of the evidence. His Honour concluded that “the evidence which has been given both orally and by way of video evidence does not show to me that these persons were acting in self-defence”. It was submitted that self defence had not been raised on the evidence and that the learned Magistrate did not fall into error of law with respect to this question.

107 As cases such as Honeysett and Nguyen make clear, self defence may apply to a charge of affray. However, the issue must be raised in the case. This may occur more readily where a limited number of persons are involved in the fight and, perhaps, self defence is raised by way of explanation or otherwise with respect to the actions of one or more persons. That is not the present case.

108 In considering this ground, I have had regard to the entirety of the evidence, including the video tape. I accept the Defendant’s submissions with respect to this ground. The evidence did not raise self defence in this case. The cross-examination did not adduce evidence which was capable of raising self defence for the purpose of s.418(2) of the Act. I have considered whether the compilation video tape depicts actions which may have raised self defence in the case. In my view, the tape does not contain material which raises self defence. The evidence in this case points to the three Plaintiffs, in the words of Priestley JA in Nguyen , being persons who wanted to fight. In such circumstances, self defence does not arise.

109 I do not consider that the Plaintiffs’ submissions referring to “directional force” demonstrate any error in law on the learned Magistrate’s behalf. Properly understood, this evidence related to the touching of one of the “men in black” to point him in a particular direction. The contact in question is depicted in the video tape. Although this contact formed part of a sequence of events leading to aggressive conduct on the part of the three Plaintiffs it did not, in my view, raise self defence with respect to the aggressive conduct of the Plaintiffs which followed.

110 Although my finding with respect to this ground does not depend upon evidence of injuries sustained during the incident, it is not entirely irrelevant to observe that Mr Bracamonte received a broken jaw and facial bruising and was hospitalised for four days (Transcript, 22 July 2004, T60, 62), Mr Ogston received scratches around his neck and a black eye (Transcript, 23 July 2004, T7.50), Mr Heaney received a cut lip and a cut to the forehead (Transcript, 23 July 2004, T34.6) and Mr Bannister sustained blurred vision and bloodshot eyes as a result of fingers being dug into his eyes (Transcript, 23 July 2004, T53-54). Apart from the reference to Mr Bensley’s shoulder (see paragraph 81 above), there was no evidence that any of the Plaintiffs had sustained injury. In cross-examination of Constable Qui, Mr Bellanto QC asked (Transcript, 20 July 2004, T55.34):

“Q. You notice any of these boys in black in torn clothing?
A. No I did not.

Q. Did you notice any marks on their body, their lip for example, cut lips, things like that?
A. No I did not.”

111 In my view, the evidence in this case did not raise self defence. No error of law has been demonstrated. I reject Ground 4.

GROUNDS OF APPEAL

10 The appellants appeal to this Court on the following grounds:

1. His Honour erred in law in finding and holding that the evidence did not raise self-defence on the part of the Appellants within the meaning of ss.418-419 Crimes Act 1900 (NSW).

2. His Honour erred in law in finding and holding that the Appellants were unable to raise self-defence in the circumstances of the case.

STATUTORY PROVISIONS

11 This appeal involves the following provisions of the Crimes Act 1900.

12 First, s.93C concerning the crime of affray:

93C Affray
(1) A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 5 years.
(2) If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).
(3) For the purposes of this section, a threat cannot be made by the use of words alone.
(4) No person of reasonable firmness need actually be, or be likely to be, present at the scene.
(5) Affray may be committed in private as well as in public places.

13 Next, ss.418, 419 and 422, concerning self-defence:

418 Self-defence - when available
(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) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives them.


419 Self-defence - onus of proof
In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.

422 Self-defence - response to lawful conduct
This Division is not excluded merely because:
(a) the conduct to which the person responds is lawful, or
(b) the other person carrying out the conduct to which the person responds is not criminally responsible for it.

SUBMISSIONS

14 Mr. Jackson QC for the appellant submitted that plainly this was not a case of premeditated attack by the appellants, and that there was clear evidence of each of the appellants going to the aid of each other either to prevent themselves being deprived of their liberty or to prevent others being deprived of their liberty, or to defend themselves or to defend the others, within s.418(1)(a) and (b); and that this was supported by the evidence referred to by the primary judge, particularly the evidence of Mr. Ogston in par.[101] of the primary judge’s judgment. Self-defence is not excluded merely because the conduct to which an accused is responding is lawful: see s.422.

15 He submitted that, if there was evidence raising self-defence in relation to just one of the accused, then, because of the identification problem which resulted in dismissal of the other charges, this would be sufficient to raise self-defence in relation to all of them.

16 Mr. Jackson submitted that all that was needed to raise self-defence was evidence capable of raising a reasonable doubt in the mind of a jury: Zecevic v. Director of Public Prosecutions (1987) 162 CLR 645 at 665; Douglas v. R [2005] NSWCCA 419 at [84]-[100]; R v. Duncan [2006] QCA 46 at [2], [11], [31]-[34]. Accordingly, the primary judge was in error in finding that the evidence did not raise self-defence.

17 To the extent that the primary judge relied on the words of Priestley JA in Nguyen at 412 to the effect that self-defence did not arise in the case of a person who wanted a fight, Mr. Jackson submitted that this was an error because these words concerned the common law position, whereas here the question was whether the statutory words applied, and in relation to those words the concept of “wanting to fight” had no application; and in any event, he submitted, the Magistrate had not made findings of fact to the effect that each of the appellants wanted to fight.

18 Mr. Jackson submitted that the Magistrate was in error in the way he dealt with self-defence. If what he said was interpreted as meaning that the evidence was insufficient to raise the issue of self-defence for consideration, he was in error for the same reasons as the primary judge; and if this was interpreted as a finding that the defence was not made out, he was in error in reversing the onus of proof.

DECISION

19 In my opinion, the following principles are applicable in this case.

(1) By reason of the onus of proof provided by s.419, all that is needed to raise self-defence is evidence capable of supporting a reasonable doubt in the mind of the tribunal of fact as to whether the prosecution has excluded self-defence. Thus, in relation to s.418(1)(a), there needs to be evidence capable of indicating a reasonable possibility of a belief by the accused that the conduct constituting the offence was necessary to defend himself or herself or others, and of a perception of circumstances such that the accused’s response was reasonable. However, the evidence must be capable of doing this as a matter of legitimate reasoning and not mere speculation: to that extent, I agree with R v. Imadonmwonyi [2004] VSC 361 at [21] and R v. Mekic [2004] SASC 44 at [5].

(2) It is not essential that there be evidence from the accused as to the accused’s beliefs and perceptions: evidence of circumstances from which inferences may be drawn as to the accused’s relevant beliefs and perceptions may be sufficient. However, if the accused does not give evidence of his or her beliefs and perceptions, then generally, in the absence of other evidence suggesting the contrary, inferences have to be drawn on the basis of what beliefs and perceptions a person in the position of the accused could reasonably hold in the circumstances.

(3) The defence may succeed even though the conduct to which the accused responds is lawful (s.422); but if this conduct is lawful, then this is relevant to whether the accused could have believed it was conduct in respect of which defence was necessary, or which threatened an unlawful deprivation of liberty; and relevant also to whether the accused’s conduct could have been a reasonable response in the circumstances as the accused perceived them.

(4) A finding that an accused “wanted to fight” does not of itself exclude self-defence; but is relevant to whether the accused could have believed his or her conduct to be necessary for defence or to prevent unlawful deprivation of liberty. Furthermore, if a person believes that any risk of harm can be dealt with by withdrawing, then generally that belief would be inconsistent with a belief that conduct of the nature of an assault was necessary for defence. The following discussion by Wilson, Dawson and Toohey JJ in Zecevic at 663-4 is relevant:

Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it. Indeed, even in circumstances in which the accused was not the original aggressor, retreat in the face of a threat of violence before resort to force may be relevant to the belief of the accused or the reasonableness of the grounds upon which the accused based his belief. There is, however, no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. It is a circumstance to be considered with all the others in determining whether the accused believed upon reasonable grounds that what he did was necessary in self-defence: Reg. v. Howe, per Dixon C.J. (1958) 100 CLR at 462-4; Viro v The Queen, per Gibbs J. (1978) 141 CLR at 115-6.

…

The whole of the surrounding circumstances are to be taken into account and where an accused person has created the situation in which force might lawfully be applied to apprehend him or cause him to desist - where, e.g., he is engaged in criminal behaviour of a violent kind - then the only reasonable view of his resistance to that force will be that he is acting, not in self-defence, but as an aggressor in pursuit of his original design. A person may not create a continuing situation of emergency and provoke a lawful attack upon himself and yet claim upon reasonable grounds the right to defend himself against that attack.
This discussion was directed to self-defence at common law, not under s.418; but similar reasoning applies in relation to s.418.

(5) However, in this case, because of the identification problems, if self-defence is raised in relation to any one of the appellants, it is raised in relation to all of them; and if self-defence is not excluded beyond reasonable doubt in relation to any one of the appellants, it is not excluded in relation to all of them.

20 There was no evidence from the appellants as to their beliefs or perceptions; so the question is, what inferences could be drawn as to their possible beliefs and perceptions from objective circumstances of which there was evidence in this case. In my opinion, the following factors are relevant:

(1) All of the appellants were lawfully requested to leave, and thereafter the security officers could lawfully use reasonable force to bring this about.

(2) There is no evidence of conduct of any of the security officers, prior to the fracas, going beyond conduct directed at causing the appellants to leave: in particular, there was no evidence of any attack on the appellants, or any of them, which could be seen as involving any risk of harm to the appellants or any of them.

(3) Even if the initial push by one of the security officers was not strictly necessary to cause the appellants to leave, and even if it constituted a technical assault, it was not such as could give rise to a belief that could be reasonably held that the person pushed was being attacked or was in any risk of harm or in any need of defence by himself or others: plainly, all he was being required to do was to leave the premises as he was lawfully obliged to do.

(4) The violent push and attempted blows against this security officer that followed immediately from at least one appellant could not reasonably have been believed to be necessary in defence of any of the appellants.

(5) There is nothing in the evidence to suggest that the resort to violence by the other appellants was preceded by any actions by security officers that were, or appeared to be, other than to promote the departure of the appellants and/or to defend themselves or others. So far as the evidence went, the actions of security officers were not such as could give rise to a belief that could be reasonably held that any of the appellants were in need of defence by himself or others; that is, that any appellant had to do any more than stop fighting in order to eliminate any risk of harm against which defence was necessary. That this was so is confirmed by the circumstance that none of the appellants was observed to have received any significant injury, while one of the security guards received very serious injuries and others of them received significant injuries.

21 In those circumstances, in my opinion the evidence relied on by Mr. Jackson was not sufficient to raise self-defence.

22 The assertion by one of the appellants to a police officer that the security officers “started it” could not, in the circumstances of this case, suggest a belief that the security officers “started it” in any sense relevant to self-defence: all the evidence was to the effect that violence was initiated by one of the appellants, in circumstances where there was no risk of harm being visited upon any of the appellants. A belief that the security officers started it, in the sense that they or one of them did something that could make defence of oneself or others necessary, could not be inferred as something reasonably possible in the objective circumstances; so in the absence of evidence from the appellants, there was no evidentiary basis for a view that such a belief was reasonably possible.

23 The evidence about the incident being a series of events in which each of the appellants was going to the aid of other appellants similarly does not raise self-defence, where the objective circumstances were such that a person in the position of any of the appellants could not reasonably believe that violent action was necessary as a matter of defence to prevent harm being done to any of the appellants or to prevent unlawful deprivation of liberty: on the evidence, all the security officers were doing, prior to the resort to violence by all the appellants, was initially to seek the lawful removal of the appellants from the premises, and thereafter to defend themselves or others. And once all the appellants had resorted to violence, they were all guilty of affray.

24 In the circumstances of this case, for the appellants to have an evidentiary basis for a reasonable doubt about their beliefs as to what was necessary, and as to their perceptions of circumstances in which their responses may have been reasonable, some evidence would have been required from them as to their actual beliefs and perceptions. In the absence of such evidence, the defence of self-defence generally depends upon what beliefs and perceptions of persons in the position of the accused persons may reasonably have had, having regard to objective circumstances of which there was evidence; and for the reasons I have given, the objective circumstances of which there was evidence in this case did not support a reasonable possibility of the existence of relevant beliefs and/or perceptions.

25 For those reasons, in my opinion the primary judge was correct in holding that the evidence did not raise self-defence; and similarly, no relevant error is shown in the decision of the Magistrate.

26 For those reasons, in my opinion the appeal should be dismissed with costs.

27 IPP JA: I agree with Hodgson JA.

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