David Edwin Hyslop v Robert Darroch - [2013] ACTMC 6

DAVID EDWIN HYSLOP v ROBERT DARROCH [2013] ACTMC 6
(9 May 2013)

CRIMINAL LAW – assault occasioning actual bodily harm – whether defendant acting in self-defence.

Crimes Act 1990 (ACT), ss 24, 26

Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645

No.      CC 6636 of 2012
           CC 6400 of 2012
           CC 6427 of 2012

Magistrate: Morrison
Magistrates Court of the ACT

Date: 9 May 2013

IN THE MAGISTRATES COURT OF THE         )
  )          No. CC 6636 of 2012
AUSTRALIAN CAPITAL TERRITORY               )          No. CC 6400 of 2012
  )          No. CC 6427 of 2012

BETWEEN:DAVID EDWIN HYSLOP
Informant

AND:ROBERT DARROCH
Defendant

DECISION

Magistrate:  Morrison
Date:  9 May 2013
Place:  Canberra

In the early hours of Sunday, 15 July 2012 a violent encounter took place at the Kremlin Bar in Canberra between the defendant, Yanis Stauce and Benjamin Penfold. The question to be answered by me in these proceedings is whether the prosecution has proved beyond reasonable doubt that the defendant’s conduct at the time amounts to an assault on Yanis Stauce or an assault on Benjamin Penfold and, in the case of Mr Penfold, if any assault on him occasioned actual bodily harm.
I have directed myself that the prosecution bears the onus of proof in relation to all elements of the offences, and that the standard of proof is beyond reasonable doubt. I have directed myself that the criminal responsibility provisions of the ACT Criminal Code do not apply.
It is not in dispute that a violent encounter took place between the defendant and the complainants at the time and place alleged by the prosecution. It is not in dispute that the defendant made physical contact with the complainant Mr Stauce. It is not conceded by the defence that the defendant made physical contact with the complainant Mr Penfold.
The defendant swears that he was acting in self-defence. I have directed myself that the test to be applied is that set out by the High Court in Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645. There is no onus on the defendant to establish that he acted in self-defence. The onus is on the prosecution to prove beyond reasonable doubt that the defendant was not acting in self-defence. The prosecution may do that by proving, beyond reasonable doubt, either that the defendant did not believe that it was necessary in self-defence to do what he did; or, if he held such a belief, that there were no reasonable grounds for it.
There is evidence of the defendant being affected by alcohol. I have directed myself that I am required to take into account evidence of the defendant’s intoxication in considering the first limb of the Zecevic test — that is whether the defendant actually held the relevant belief; but that I ignore such evidence in considering the second limb of the test — that is whether there were reasonable grounds for such a belief.
Evidence of the defendant’s good character was put before me as part of the defence case. I have directed myself that the defendant is entitled to have such evidence taken into account in two ways. First, a person of good character is less likely to have committed the offence. Secondly where, as here, the defendant has given sworn testimony, the evidence of good character supports his credibility.
In his comprehensive submissions for the defence, Mr Gunning adds that what he described as the contemporaneous comments by the defendant claiming self-defence also support the credibility of the defendant. I agree with the principle of that proposition but note that in this case what the defendant actually said to police was words to the effect of “Those other guys got in my face and started a fight. I hit one of them in self defence.” It is not completely clear what the defendant meant by his reference to the other guys getting in his face and starting a fight and it is difficult to see, even on his own evidence, how that can have been an accurate description of what the defendant, in his sworn testimony, says took place. In those circumstances, the logic behind treating his comments as supporting his credibility is weakened. As a result I have not placed great weight on those comments as any additional source of support for his credibility.
Evidence in the prosecution case was given by both complainants and by First Constable Hyslop, First Constable Earle, Constable Langlands and Constable Meyers. In addition, certain medical evidence was tendered in written form as were photographs of injuries sustained by the complainant Mr Penfold and one statement by Ms Phoebe Burgoyne-Scutts and two by Mr Duncan Stanton-McClure. The last 3 statements just referred to were admitted by consent and the makers of them were not required for cross-examination. Also in evidence in the prosecution case is a recording on disk of CCTV footage taken within the Kremlin Bar. It captures the encounter between the defendant and the complainants. It is a video recording only — that is, there is no audio component — and whilst the entire encounter appears to take place before the camera, the images on the recording are not of high quality.
The defendant gave evidence in the defence case. He was not obliged to do so. He was in the Kremlin Bar at the time with his brother Mr Hamilton Darroch and a friend Mr Andrew McVey, both of whom also gave evidence.
Much time was spent in evidence about the exchanges between the defendant and the complainant Mr Stauce prior to the defendant walking over to the complainant. Mr Stauce gave evidence that he directed a question to the defendant along the lines of "Why are you staring at us?” He said that question was posed in a "curious and submissive way".
Under cross-examination the complainant Mr Penfold was asked about what the complainant Mr Stauce had said as part of the verbal exchange with the Defendant. He said that the complainant Stauce had said words to the effect of "what's your problem?" He at first described the tone of voice as being “agitated”, later saying that it was “mildly agitated”.
Mr Penfold presented as a thoughtful young man who gave his evidence in a forthright and believable manner. He had consumed only one drink on the night. He was cross-examined about some differences between his testimony and his prior police statement but the differences are not matters of great moment. Under cross-examination, Mr Penfold did also retreat somewhat from his description of the tone adopted by Mr Stauce in his communication with the Defendant, but that has not caused me to doubt his reliability generally. I find him to be a truthful and reliable witness.
In his sworn evidence, the defendant said that Mr Stauce was staring at him, that he — that is the defendant — responded with a gesture in the nature of a palms upward shrug, and that Mr Stauce yelled out to him "what are you looking at" in an aggressive manner. He said he replied by saying “I'm not looking at you” and returned to his conversation with his companions. He subsequently left the bar for a short time to have a cigarette. He said that when he returned to the bar Mr Stauce shouted at him calling him a “fat old cunt”. He described the comments as having been made "with venom" and that Mr Stauce was leaning forward with eyes bulging and a direct stare.
Given the testimony of the complainant Mr Penfold, and, in the circumstances of what was taking place, I agree with the defence submission that it is highly unlikely that the question put by Mr Stauce to the defendant was asked in the "curious and submissive way" asserted by Mr Stauce. I have concluded that Mr Stauce was trying to downplay the extent to which his side of the verbal exchange with the defendant could be seen as provocative.
I find that, in the verbal exchange which took place before the defendant approached the complainants, Mr Stauce was provocative in manner and/or tone. In those circumstances I do not regard the actual words used as material and I make no finding in relation to that.
That finding does affect my assessment of the reliability of the other evidence of Mr Stauce except where such evidence is also supported by that of Mr Penfold or by what can be observed on the CCTV footage.
That finding also presents as something of a double-edged sword for the defence. On the one hand, it demonstrates some level of aggressiveness by the complainant Mr Stauce towards the defendant by way of the comments made. On the other hand, it also demonstrates that despite his observations that he regarded the complainants group as rough looking and despite the provocative comments directed towards him, any concern the defendant had for his own safety was not such as to prevent him from confronting Mr Stauce about those comments.
It is also apparent from the evidence that the defendant was at the time annoyed by the conduct of the complainant Stauce. When asked how he felt he said this:
I was sort of fairly disturbed by that and from that perspective I really didn't want our evening to turn pear shaped and I decided I would go over there and asked him to stop, tell him to, you know, shut up, shut the hell up and leave me alone.
The defendant went on to say that he went over to Mr Stauce and in fact told him to “shut the hell up and leave me alone".
It is not in dispute that the defendant did approach the complainant Stauce. The evidence of Mr Stauce is that the defendant jumped out of his seat and that before he — that is Mr Stauce — had a chance to do anything, the defendant had put his hands around his neck and was squeezing. Mr Stauce said that there was no conversation while the defendant was standing over him. It is apparent from the CCTV that Mr Stauce is not correct in what he says about that and that the defendant stands over him for some little time before any physical contact is made.
The CCTV footage clearly shows the defendant when he gets up from his seat and walks to stand in front of where Mr Stauce is seated. The seats are low lounge style seats. The defendant stops in front of Mr Stauce. The defendant’s feet are close to those of Mr Stauce and he leans forward at the waist such that his head moves closer to that of Mr Stauce. While there is no audio record it is apparent from the body language of the defendant and Mr Stauce that some verbal exchange takes place between them at this point. The left arm of Mr Stauce is clearly visible. He appears to raise his left arm twice while the verbal exchange is taking place in a conversational type gesture which might be pointing back towards where the defendant had come from. In any event it does not appear to be a threatening gesture and the defendant did not say in his evidence that any threatening gesture was made. The left arm of Mr Stauce is then placed back in his lap or on the top of his leg.
In his sworn testimony, the defendant went on to describe what happened after he went over and told Mr Stauce to “shut the hell up and leave him alone”. He said that the look in the eye of Mr Stauce worried him and that “he didn't stop with his facial expression of aggression”. He says that Mr Stauce said "what are you going to do?” He went on to say "to me that was in a threatening tone and from my perspective I thought at any moment he was going to rise up with his friends and I was going to be beaten".
In his testimony, Mr Penfold agreed that Mr Stauce had said to the defendant at this point “what are you going to do?”. What was put to Mr Penfold in cross-examination was that the words were spoken in a goading manner — as if to goad the defendant on. Mr Penfold said that was not the case.
The defendant went on, in response to a leading question about whether he was also concerned because he was not sure where the friends of Mr Stauce were, to say "it was in the back of my mind, yes".
The defendant went on further to say that because of his concerns he put his hands on Mr Stauce — "around the collarbone area ..... to hold him down to stop him from getting up and the situation getting out of control”. He said he was worried for his own safety at that point. He denied that his hands were around the neck of Mr Stauce or that his thumbs were on his throat. He said that all he was trying to do was to restrain him from moving upwards.
It is appropriate at this point to turn to a more detailed analysis of what is shown on the CCTV footage.
At that point on the CCTV footage which is time marked as 1.19.04, the defendant can be seen standing in front of where the complainant Mr Stauce is seated. He can be seen to straighten up slightly — that is to straighten himself up from where he had been leaning over Mr Stauce. Very shortly thereafter — at the point on the footage which is 1.19.05 — the defendant can be seen to quickly lean forward over Mr Stauce to a point where his head is quite close to that of Mr Stauce and to bring up his hands to the region of the neck of Mr Stauce. It is apparent that, at the point in time when the defendant does that, the hands and arms of Mr Stauce are not raised.
The testimony of Mr Stauce was that the defendant has placed his hands around the neck of Mr Stauce and was squeezing as if to choke him. He denied a suggestion in cross-examination that the defendant’s hands have been placed on his shoulders adding that if that had been the case he would not have had a sore neck as a result. In his evidence-in-chief, Mr Penfold had also said that the defendant put his hands around the throat of Mr Stauce. He described it as being in a fashion that puts both thumbs at the front of the throat and wraps the other parts of the hand around the back of the neck. It is apparent from the CCTV that Mr Penfold was very close to Mr Stauce at the time that the defendant made contact with him. Mr Penfold conceded in cross-examination that in his statement to police he had not made reference to the defendant's thumbs being on the throat of Mr Stauce, but I do not regard that as material.
In his evidence-in-chief, Mr Hamilton Darroch said that he could see the defendant’s left hand on the shoulder of Mr Stauce at a point about midway between the neck and the point of the shoulder. He said that he saw the defendant’s hand on the shoulder of Mr Stauce for about a second and then Mr Stauce pushed his way up and a melee erupted.
The witness Mr McVey said in his evidence in chief that he saw one of the defendant’s hands on the shoulder of Mr Stauce. Again he demonstrated a position about halfway between the neck and the point of shoulder. Mr McVey said that he did not see the defendant with his hands cupped around the neck of Mr Stauce.
No questions were asked of either Mr Hamilton Darroch or Mr McVey in cross-examination about the placement of the defendant’s hands on Mr Stauce. In particular it was not suggested to those 2 witnesses that they were lying or that their observations or recollections were unreliable. Where, as here, the prosecution presses its case on the basis that the defendant placed his hands on the neck of Mr Stauce, those witnesses should have been cross-examined on that point.
It is apparent however that Mr Penfold was in a far better position to observe the precise position of the defendant’s hands than either of those witnesses, both of whom were to the rear and left of the defendant. The clarity of the CCTV footage is such that there is no single image in which the hands of the defendant can actually be seen on the neck of Mr Stauce. Nevertheless a persuasive impression about the placement of the Defendant’s hands is conveyed by what can be observed over several images (both before and after the initial contact) of the direction of movement of the defendant’s arms and their distance apart.
No objection was taken or submissions made by the defence about the absence of cross-examination to which I have just referred.
I have taken into account the evidence supporting the credibility of the defendant and the absence of cross-examination of Mr Hamilton Darroch and Mr McVey about the placement of the defendant’s hands. However, having regard to what can be observed on the CCTV, the testimony of Mr Penfold on this point, and with some reservations, the testimony of Mr Stauce himself, I am satisfied beyond reasonable doubt that the defendant was not being truthful when he said that he placed his hands on the shoulders of Mr Stauce. I find that he in fact grabbed the neck of Mr Stauce.
I have directed myself that self-defence is not precluded merely because the initial contact by a defendant is in the nature of a pre-emptive strike to prevent an imminent attack. The test remains as set out in Zecevic — did the defendant believe on reasonable grounds that it was necessary in self-defence to do what he did?
The defendant says the facial expression of Mr Stauce, the look in his eye and the question he says was asked — what are you going to do — caused him to fear for his own safety.
I have taken into account the evidence as to the extent to which the defendant was affected by alcohol at the time — in particular the evidence of Constables Hyslop and Myers and of the breath analysis results — and the effect that intoxication may have had on the defendant’s perceptions and the belief he formed.
Nevertheless it is apparent that the defendant held no fears for his safety when he decided to make the approach to Mr Stauce. The defendant’s decision to make that approach was under circumstances where he says he had noticed Mr Stauce and his friends as being what he described as “rough” and where Mr Stauce had already engaged in overtly provocative behaviour towards the defendant in the comments he had made. Even allowing for the defendant to have been in an intoxicated state it is simply unbelievable that only moments later — and in response to what is on the defendant’s own evidence far more subtle factors — the defendant believes it necessary to grab Mr Stauce by the neck in self-defence.
Again I have taken into account the evidence supporting the credibility of the defendant but in the end result I do not believe the defendant when he says that he held that belief.
I am reinforced in my conclusion about that by the very nature of the defendant’s act. As mentioned earlier in these reasons, the defendant can be observed on the CCTV to straighten up immediately before he leans forward and places his hands on Mr Stauce. Mr Stauce is sitting in a low seat and the defendant is seen to bend over significantly to reach him. It is apparent that when he leans forward he is bringing his head into a position much closer to Mr Stauce, and in particular bringing his head to within striking distance of the arms and hands of Mr Stauce. There is no evidence to suggest that the arms and hands of Mr Stauce were pinned down in any way by the act of the defendant. Such a manoeuvre by the defendant — bringing him closer to danger — is not logically consistent with the conduct of a person fearing for his safety and acting in self-defence.
Even if I am wrong and the defendant did, in his intoxicated state, hold a belief that it was necessary in self-defence to do what he did, I am satisfied beyond reasonable doubt that there were no reasonable grounds for such a belief. Despite the verbal provocation which I have found took place, Mr Stauce was seated when the defendant approached him and remained seated. His arms and hands were not raised. There was nothing overtly threatening in his posture or in what he said. The seat Mr Stauce occupied was low to the ground. The defendant was in the company of 2 other men in the bar who were friends. There was nothing preventing him from walking away even if he felt some threat or risk of violence.
In all the circumstances, I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of Charge 6636 of 2012 including negativing self-defence.
I return to the analysis of the CCTV footage in connection with consideration of the second charge against the defendant.

At a point on the CCTV footage which is 1.19.06, Mr Stauce appears to move suddenly to his left in his seat with the defendant’s hands still on him. At that point, Mr Penfold is rising from his seat and moving slightly to his left. At 1.19.07 and 1.19.08, Mr Stauce appears to be pushing the defendant away while still in a seated position. Mr Penfold is standing and moving towards the defendant with both arms outstretched in what appears to be a push away motion. What can be observed of Mr Penfold is consistent with his testimony that he attempted to separate the defendant and Mr Stauce with open hands by pushing.
By 1.19.10, Mr Stauce is getting to his feet in a position between the defendant and Mr Penfold. The defendant at this stage has moved backwards closer to where his companions were sitting. At a slightly later point but still shown as 1.19.10 Mr Stauce falls or is pushed back into his seat so that he is no longer between the defendant and Mr Penfold. That leaves the defendant and Mr Penfold facing one another more or less square on. The arms of Mr Penfold are not visible at this point.
In the image which next follows at 1.19.11, the right arm of Mr Penfold can be seen to be slightly extended and pointing in a direction to be left of the defendant with his elbow bent and forearm slightly above the horizontal. The defendant’s left arm is extended away from his body in the same direction. Neither the defendant’s arm nor that of Mr Penfold appears to be attempting to strike any blow at this point. The next image — also at 1.19.11 — shows the defendant with his right arm fully extended such that his fist, if it was visible, would be at about the position of the jaw of Mr Penfold. At that point Mr Penfold has his hands outstretched in front of him. The position of his hands and body suggests a stance adopted to ward off a blow by the defendant — again consistent with his sworn testimony of having his hands up in a defensive position. Thereafter the head of the complainant Mr Penfold can be seen to move backwards and he then raises his left hand to his face in a gesture typical of a person feeling for a point at which he has been struck.
I am satisfied beyond reasonable doubt that, at the point which I have just identified on the CCTV footage, the defendant’s fist came into contact with the face of the complainant Mr Penfold. There is no evidence of anything else as a reasonably possible cause of the injury suffered by him and I find beyond reasonable doubt that the contact just described caused his injuries and that they amount to actual bodily harm.
The finding which I have already made about the conduct of the defendant towards Mr Stauce establishes that he was the original aggressor at least insofar as the making of physical contact with Mr Stauce was concerned.
The evidence of Mr Penfold was that his response to the defendant grabbing at Mr Stauce was to assist Mr Stauce by attempting to separate the defendant from him. He said he used his arms with his hands in an open hand pushing motion. Again whilst the CCTV footage is not completely clear, what can be seen is consistent with Mr Penfold’s descriptions of his own actions.
I have directed myself that self-defence is not precluded merely because a defendant is the original aggressor. Again the test remains as set out in Zecevic — did the defendant believe on reasonable grounds that it was necessary in self-defence to do what he did? The point was dealt with in Zecevic by Wilson, Dawson and Toohey JJ at page 663 in these terms:
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.
I have had the advantage of being able to undertake an unhurried and more or less frame by frame analysis of what took place from the CCTV footage. I acknowledge that doing so does not necessarily represent in a realistic way how events would have appeared to the defendant or indeed the complainants at the time but the visual record is, subject to the observations about image quality, at least an accurate depiction of what actually took place.
In his sworn testimony, the defendant says that after he placed his hands on Mr Stauce, he was pushed and kicked, hit to the left side of his head and was pushed away. He said that Mr Penfold was "up almost immediately from my perspective and that's what concerned me". He said that he started to move backwards at that point, that both Mr Stauce and Mr Penfold were up and coming towards him and that there were punches thrown. He said he couldn't say whether it was Mr Stauce or Mr Penfold or both who threw punches but that there was a flurry of arms and that he sought to defend himself while moving backwards. He said again that he was worried about getting beaten. He was asked if he was engaging in the flurry of arms as well and whether he was using his arms. He said that he was in that he was looking to defend himself at that point.
The defendant said that at the time he did not feel as if he had hit anyone or anything but that later he discovered he had a cut on his knuckle and that some blood was present. He agreed that he was throwing some punches but said that he did so because he was looking to defend himself against the complainants. The defendant said that when Mr Stauce and Mr Penfold were approaching him as he was going backwards Mr Stauce yelled twice “come on, come on”.
I note that, according to what is shown on the CCTV footage just prior to the point in time of the delivery of the blow by the Defendant to the face of Mr Penfold, the complainant Mr Stauce has been pushed or has fallen back on to the lounge chair on which he was sitting. It was not possible for him to have struck the defendant with his fists from that position at that point in time. It appears that he is kicking out at the defendant with his leg from a partially reclining position but he could not have contributed to anything at that point in time which could properly be described as a flurry of arms.
As I mentioned earlier in these reasons, just prior to the delivery of the defendant’s blow to Mr Penfold, the defendant and Mr Penfold are more or less square on to one another. There is nothing in the posture of Mr Penfold to suggest that he is striking at the defendant. What can be seen of the movement of his arms supports his evidence of a defensive gesture. No other persons are swinging their arms. At between 1.19.10 and 1.19.11 on the CCTV, the defendant can be seen to move forward slightly from his friends before striking out at Mr Penfold.
The response of Mr Penfold to the defendant’s assault on Mr Stauce was immediate. The CCTV footage supports his testimony that he moved to separate the defendant and Mr Stauce. The blow delivered to Mr Penfold by the defendant takes place only moments after that. On the basis of what is shown on the CCTV recording time stamp, the defendant’s assault on Mr Stauce starts at 1.19.05 and the blow to Mr Penfold takes place at 1.19.11 — some 6 seconds later.
I am satisfied on the basis of the CCTV footage and the testimony of Mr Penfold that, after initiating the attack on Mr Stauce, the defendant did not decline further conflict, quit the use of force or retreat from it.
In all the circumstances, I am satisfied beyond reasonable doubt that the blow struck by the defendant to Mr Penfold was intentional, that it was a continuation of his original aggression directed towards Mr Stauce and that he did not believe when he struck Mr Penfold that it was necessary to do so to defend himself.
Again, if I am wrong about that and the defendant did, in his intoxicated state, hold a belief that it was necessary in self-defence to do what he did, I am satisfied beyond reasonable doubt that there were no reasonable grounds for such a belief. He had been the original aggressor. It is apparent that the conduct of Mr Penfold was limited to separating him from Mr Stauce. He was in the company of 2 other men in the bar who were friends. There were no reasonable grounds for a belief that he needed to strike out to defend himself.
It follows from the conclusions I have reached that I am satisfied that the prosecution has proved each of Charges 6427 of 2012 and 6636 of 2012 beyond reasonable doubt. I find the defendant guilty of both.
Charge 6400 of 2012 is what is described in this jurisdiction as a back-up charge. Having found the defendant guilty of Charge 6427 of 2012, I make no finding in relation to Charge 6400 of 2012.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the Reasons for Decision of his Honour, Magistrate Morrison.
Associate: Gary Khoo
Date: 9 May 2013

Counsel for the Prosecution: Ms K Musgrove

Office of the Prosecution: Commonwealth Director of Public Prosecutions

on behalf of the ACT Director of Public Prosecutions

Counsel for the Defendant:  Mr M Gunning
Solicitor for the Defendant:  Yates Beaggi Lawyers
Date of hearing:  12 March 2013 and 13 March 2013
Date of decision:  9 May 2013