Dimitrievska v Dale

[2024] ACTMC 3

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Dimitrievska v Dale

Citation: 

[2024] ACTMC 3

Hearing Dates: 

25 October 2023, 18 January 2024, 24 January 2024

Decision Date: 

20 February 2024

Before:

Special Magistrate Urbas

Decision: 

Charge dismissed.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Assault Occasioning Actual Bodily Harm – self-defence where defendant is the original aggressor – application of the common law test in Zecevic

Legislation Cited: 

Crimes Act 1900 (ACT) s 24(1), Dictionary

Crimes Act 1914 (Cth) s 23B

Evidence Act 2011 (ACT) Dictionary

Cases Cited: 

Cattanach v Harrison [2016] ACTSC 60

Clifton v Duong [2018] ACTSC 346

Collins v Willcock [1984] 1 WLR 1172

Davis v Stephens [2019] ACTSC 271

DPP v Jaram [2023] ACTSC 318

Edwards v The Queen (1993) 178 CLR 193

Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439

Follett v Mann [2019] ACTSC 141

Liberato v R (1985) 159 CLR 507

McIntyre v R [2009] NSWCCA 305

R v Barrington [2009] ACTSC 121

R v Blaue [1975] 1 WLR 1411

R v Burdon [2011] ACTSC 90

R v Donovan [1934] 2 KB 498

R v Fry [2021] ACTSC 138

R v Gabriel [2004] ACTSC 30

R v Hallett [1969] SASR 141

R v Murray (1987) 11 NSWLR 12

R v Pagett (1983) 76 Cr App R 279

R v Ramalingam [2011] ACTSC 86

R v Smith [1959] 2 QB 35

Rawsthorne v Wilson [2018] ACTSC 342

Rogers v R [2021] NSWCCA 61

Royall v The Queen [1991] HCA 27

Tuberville v Savage (1669) 1 Mod Rep 3

Woolmington v DPP [1935] AC 462

Zanker v Vartsokas (1988) 34 A Crim R 11

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

Parties: 

A Dimitrievska ( Informant)

J Dale ( Defendant)

Representation: 

Counsel

L Thomas ( Informant)

B Bodel ( Defendant)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT ( Defendant)

File Number:

CC 7475 of 2023

SPECIAL MAGISTRATE URBAS:

Background

1․Thursday nights are ‘cheap drinks’ nights in Civic, the centre of Canberra. Students from the nearby Australian National University (ANU) campus are often found in the city on those nights, drinking at local establishments such as Mooseheads, and walking from one venue to another. Sometimes they continue into the early hours of the following morning. Sometimes they find themselves in altercations with other patrons, either inside a venue or outside on the street.

2․This case involves such an altercation, during which the complainant, a first-year university student, was punched by the defendant and sustained injuries. The degree of harm and causation are contested, and self-defence is raised. Identification is not in issue.

3․The defendant came before the court on 18 January 2024, charged with a single offence of assault occasioning actual bodily harm, contrary to the Crimes Act 1900 (ACT) s 24(1), which provides:

24Assault occasioning actual bodily harm

(1)A person who assaults another person and by the assault occasions actual bodily harm is guilty of an offence punishable, on conviction, by imprisonment for 5 years.

4․This aggravated assault is alleged to have occurred on 29 April 2022, at around 2.20am in Canberra city at the intersection of East Row and London Circuit, where the defendant punched the complainant, knocking him unconscious. He suffered further injuries while being dealt with by police and was later assessed as having a mild concussion.

5․The prosecution relies on a medical certificate, closed-circuit television (CCTV) evidence and body-worn-camera (BWC) footage. It also relies on consciousness of guilt evidence in the form of an alleged lie told by the defendant to police when they spoke to him after the incident at another location.

Assault

6․Assault is not defined in the legislation, either in the basic common assault offence in s 26 or the aggravated offence in s 24, so the common law understanding of the offence applies as set out in Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; cited by Higgins J in R v Gabriel [2004] ACTSC 30 at [92] (Gabriel) and R v Ramalingam [2011] ACTSC 86 at [173]:

Assault is an offence under s 26 of the Crimes Act. Though assault is technically the deliberate engendering in another person of fear that unlawful force is about to be inflicted on him or her, it has, at common law, been assimilated with the offence of battery which is the actual intended infliction of unlawful force on another without his or her consent: Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 (at 444).

7․Assault by intended infliction of unlawful force encompasses such acts as punching, slapping, kicking, pushing, spitting, or grabbing another’s clothing, without the consent of that person. However, not every form of contact will be assault, even without consent. This is due to the requirement that such contact be unlawful, where the categories of lawful contact are not closed and assault minimally requires more than simply going about one’s ‘daily life’: Collins v Willcock [1984] 1 WLR 1172, cited by Walmsley AJ in Cattanach v Harrison [2016] ACTSC 60 at [20].

8․As to the fault element, in R v Barrington [2009] ACTSC 121, Higgins CJ at [7] stated:

It is necessary for the prosecution to prove that such force was applied intentionally, that is, not accidentally or inadvertently and without the consent of the victim. Even force applied negligently will not suffice, though recklessness as to whether force is applied would suffice.

9․Recklessness in the common law requires a subjective awareness of a likely consequence or circumstance and going ahead regardless of that awareness.

Actual bodily harm

10․The term ‘actual bodily harm’ as used in s 24(1) is also not defined in the legislation, except in relation to pregnancy: Crimes Act 1900 (ACT), Dictionary. Therefore, its meaning is derived from the common law. The classic case of R v Donovan [1934] 2 KB 498 at 509 is regularly cited, to the effect that actual bodily harm need not be permanent but must be more than ‘merely transient or trifling’: R v Fry [2021] ACTSC 138 at [43]; R v Burdon [2011] ACTSC 90 at [26] (Burdon).

11․Rogers v R [2021] NSWCCA 61 at [133], citing McIntyre v R [2009] NSWCCA 305 at [44] states:

Bruises and scratches to a victim are typical examples of injuries that are capable of amounting to actual bodily harm.

12․However, the word ‘capable’ indicates that not every case of bruising or scratching will amount to actual bodily harm, the threshold being that the injuries must be more than ‘merely transient or trifling’. Thus, for example, Refshauge J in Burdon at [177] held that, despite finding that a husband pulling a scarf around his wife’s neck had left red marks on her neck, was unable to conclude that this amounted to actual bodily harm.

13․Occasioning actual bodily harm means directly or indirectly causing it: Zanker v Vartsokas (1988) 34 A Crim R 11, a case in which a young woman threatened with sexual violence jumped out of a moving vehicle, sustaining injuries, which were held to have been occasioned by the assault by threat of bodily harm. Where there is an intervening cause or novus actus interveniens the task becomes to determine whether it is so overwhelming as to overtake the defendant’s role in bringing about the result. Generally, the criminal law sets a high bar for such a claim, preferring to hold those who inflict bodily harm on a victim responsible for all consequences that follow, including death, despite claimed intervening conduct such as the acts of the victim, a third party or a natural event: Royall v The Queen (1991) 172 CLR 378 (Royall); [1991] HCA 27 (defenestration); R v Blaue [1975] 1 WLR 1411 (refusal of transfusion); R v Hallett [1969] SASR 141 (rising tide); R v Smith [1959] 2 QB 35 (medical treatment).

14․Actions of the police were considered in the case of R v Pagett (1983) 76 Cr App R 279 (Pagett), in which an offender in a shootout with police held a hostage in front of him, who was killed by a police bullet. The offender was held responsible for her death as it was his criminal conduct that caused the police response. The chain of causation from his acts to the harm caused was not broken by an intervening act, a novus actus interveniens. In Royall, McHugh J citing Pagett stated at [31]:

To constitute a cause for the purposes of the criminal law, it is not necessary that an act or omission be the sole or main cause of a wrong: Pagett, at p 290. But … the purpose of the legal doctrine of causation is to attribute legal responsibility, not to determine the factors which played a part in the happening of an event or occurrence.

15․The tests identified in Royall as springing from common law cases were, per McHugh J at [25]:

(1) the operating and substantial cause test; (2) the natural consequence test; (3) reasonable foresight of the consequences test; and (4) thenovus actusinterveniens test, which is used sometimes in conjunction with and sometimes independently of one of the other three tests. Unfortunately, the cases show no consistent pattern in applying these tests. 

16․In R v Smith (1959) 2 QB 35, also cited by McHugh J in Royall at [26], Lord Parker CJ stated that a novus actus would operate to break the chain of causation ‘only if the second cause is so overwhelming as to make the original wound merely part of the history’.

Self-defence

17․The common law test for self-defence as set out in Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 (Zecevic) applies to assault, as discussed in cases such as Rawsthorne v Wilson [2018] ACTSC 342 at [84] (Rawsthorne), Clifton v Duong [2018] ACTSC 346 at [45]; Follett v Mann [2019] ACTSC 141 at [55]; Davis v Stephens [2019] ACTSC 271 at [52], the test being:

(a) whether the defendant had an honest belief that it was necessary in self-defence to do what he did; and

(b) whether in all the circumstances there were reasonable grounds for the defendant’s belief that it was necessary in self-defence to do what he did.

18․Self-defence is raised in this case. The prosecution’s burden is to negate self-defence beyond reasonable doubt. If it cannot, the defendant is entitled to have the charge dismissed, as explained by her Honour Penfold J in Rawsthorne at [98]:

… the availability of self-defence depends on both limbs being satisfied; that is, if the prosecution can establish that there was no relevant belief, that will exclude self-defence as an issue, and if a relevant belief cannot be disproved, the prosecution can still exclude self-defence by establishing that there were no reasonable grounds for such a belief.

19․Generally, a self-defence claim is difficult to sustain or accept where the defendant is the original aggressor, as was explained in Zecevic, per Wilson, Dawson and Toohey JJ at [19]:

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 …

20․Self-induced intoxication may be relevant in assessing belief formation, but an objective sobriety must be applied in any reasonable person test: Rawsthorne at [93] - [105]. I will return to the application of the law to the facts after setting out the evidence.

Evidence

21․The complainant gave evidence. He said that he was in the city area on the way to Mooseheads with some friends in the early hours of 29 April 2022, and was struck twice on the face. He and his mate, David, were walking together, with another group of mates travelling behind them. His assailant was one of two men they encountered in the street at the corner of East Row and London Circuit, with whom there was a conversation about going to Mooseheads. He said that after the conversation, they turned and walked away in the opposite direction in front of them. He said that he was hit once on the face, then a second time which knocked him unconscious. When he came to, he was surrounded by people including police. He felt drowsy, had a headache and a lot of pain around the left side of the face and jaw. He was taken to hospital by ambulance.

22․His injuries included concussion, bruising on the face and jaw lasting up to three weeks, and he had to take two weeks off sport activities after a medical consultation a week and a half after the incident due to the concussion. An Ochre Health medical certificate dated 5 May 2022 stated that he had a ‘mild concussion’ and would be fit to return to normal activities and work duties after 11 May 2022 (Exhibit 1). He stated that he did not consent to any punches.

23․In cross-examination, he stated that he was 19 years old at the time of the incident and going out most weekends. On 29 April 2022, he had several drinks between 10 pm and 2 am including beer and premixed vodka / Red Bull drinks and was moderately intoxicated by 2am. Shown his police statement, he corrected this to highly intoxicated. He conceded that this would lead to poor decision-making and faded memory. He did not recall whether he challenged two men to a fight but conceded that he may have said ‘I’m going to smash you, cunt’ to one of them.

24․He conceded that these words could make a stranger feel unsafe. He agreed that it was possible he had said words including the specific threat to the two men, and possibly attacked one of them. He recalled two punches that he received, but being shown CCTV footage of the incident, altered this to one punch, saying ‘I must have remembered it differently’. In re-examination, he said that these words may have come from him or from his mate, David, who he agreed held him back at one stage.

25․By agreed facts, the complainant’s friend, David Ross, did not make a police statement as he was considered too intoxicated at the incident, nor was he called as a witness.

26․The defendant’s friend, Jackson Usher, gave evidence. He said they were leaving the city after being out, there was confusion as to an Uber pickup, and they were walking towards a road near Mooseheads when a group followed them, being rude, yelling, and they told them ‘Don’t follow us’. He said that he had poor recall and was only recently out of hospital for a head wound.

27․His memory prompted, he recalled an altercation that he described as a ‘tuffle’ which included push and shove, and someone getting hit. He vaguely recalled the defendant hitting someone, which he said was in self-defence.

28․In cross-examination, he agreed that a dark-haired man may have said ‘smash you’ to the defendant, who had punched this man. He said they were aggressive, approaching them and were of a larger stature, making him and the defendant feel uncomfortable.

29․Constable Alana Dimitrievska gave evidence of arriving at the scene after the incident and seeing a dark-haired male seated on the corner, with some blood in the corner of his mouth. This male was the complainant, who reported feeling unwell and holding his face, and an ambulance was called. Her BWC footage was played in four excerpts identified by the prosecutor (Exhibit 2).

30․Later, she took a statement from the complainant and obtained CCTV footage from an ACT street camera, which was played in three excerpts identified by the prosecutor (Exhibit 3) and a fourth different street camera (Exhibit 4). Screenshots from this footage were tendered (Exhibit 5) as was medical documentation obtained by the officer recording only facial injuries (Exhibit 6).

31․In cross-examination, the officer stated that she was not the most senior officer attending, as this was First Constable Liam Brown. Her police training included basic first aid, but not specifically to deal with head trauma, and she also had training in the use of force. She was shown footage of First Constable Brown’s dealings with the complainant and agreed that this involved force that she would not have used as it was not necessary and was dangerous. She did not take photos of injuries visible on the complainant as she assumed these would be visible on BWC. She accepted that he may have bitten his lip during a second fall, after being punched and while dealt with by police. She engaged with the complainant again three weeks later and observed no injuries then.

32․First Constable Liam Brown gave evidence, stating that he had approached the complainant and his friend, David, and saw the complainant, who appeared dishevelled with a flushed face, first push and then hug his friend, and attempt to leave the scene. He prevented the complainant from leaving. He decided to take the pair into protective custody and required the complainant to sit down, but at one point he tried to stand up and the officer used force to sit him down again. Unfortunately, according to the officer, he resisted, and his head fell back, hitting the concrete. His BWC footage was played (Exhibit 7).

33․In cross-examination, the officer agreed that a head knock could be dangerous, but that use of force was permitted in a range of circumstances as regulated by police guidelines. He said that he had forced the complainant downwards with one hand on his shoulder and pulling his leg out with the other, trying to make him sit but his head went back unexpectedly and hit the concrete. He said that this was not hard enough to cause concussion, but he was not a medical expert. He agreed that effects of a head knock can include concussion, unconsciousness or even death. However, he steadfastly refused to accept that his treatment of the complainant was dangerous, based on safety considerations, and was not an emotive but an informed response to the situation. He agreed that the complainant had visible blood on his face at the time.

34․First Constable Paige Grant gave evidence of dealing with the defendant some 20 minutes after the incident, when he was seen on a nearby street and matched a description of one of the men involved in the altercation at the intersection of East Row and London Circuit. The defendant provided his name and other details on request. He was told he was not in custody and was free to leave. Her BWC footage from the scene was played and tendered (Exhibit 8).

35․In cross-examination, the officer confirmed that there was no caution given, the pair were not in custody and were free to leave. However, the defendant matched the description provided to police of the assailant involved in the earlier alleged assault. The defendant’s lawyer submitted that this made him a protected suspect at the time: Crimes Act 1914 (Cth) s 23B. Finally, BWC footage of First Constable Cameron Paule was tendered by consent. The prosecution case closed.

36․The defendant gave evidence, stating that he and his friend, Jackson, were on their way home from the city area and had ordered an Uber but there was some confusion about a pick-up point, and they were planning to go through the laneway near Mooseheads when they ran into a group that engaged with them, including by yelling and moving closer to the pair. There were three in that group and other people around, and in response to the aggressive behaviour, the defendant and his friend said, ‘Don’t follow us’, there was then some pushing and shoving, and someone from the group made the ‘going to smash you’ remark and came at the defendant aggressively.

37․During the altercation, the defendant perceived the dark-haired man to be more aggressive, with his red-haired companion trying to restrain him, and the situation escalated to the point where he punched the man, which gave them time to leave. He said ‘I think I do remember hitting him as he was roaring towards me. I think that it was just a - maybe a reflex thing at the time’.

38․His evidence was that ‘I’m going to smash you’ was said at least twice by the dark-haired man, who was the complainant, and who was more focussed on him and was getting ‘super aggressive’ which put him in a ‘state of fear, absolutely’ and feeling ‘threatened’ that they were ‘going to get jumped’. He said that he was not sure what was going to happen as the group approached and advanced on them from behind and thought that there may have been a hit from behind.

39․In cross-examination, the defendant was asked about the level of drinking on the evening of 29 April 2022, and said that started around 10pm on the day before, a ‘cheap drinks Thursday’ with about 3 drinks in the first hour and two drinks every hour after that, till around 2am. He put his level of intoxication at 7 or 8 out of 10, but described it as not ‘ridiculously intoxicated’ and said that by that time he was ready to go home and sleep. He accepted that his decision-making ability may have been affected, but against this said that he and his friend were ‘old enough’.

40․Taken to the specifics of the altercation, he said that the group of three or more outnumbered him and his friend, Jackson, who may have put his hand up as they came up to them, and they may have pushed his hand away and he may have pushed back, which is when the complainant was ‘roaring’ at him, coming towards him, saying ‘I’ll smash you’. He described his punch in response as not hard, and ‘almost a love tap’ but then conceded that it was a closed fist punch.

41․Shown the footage, the defendant conceded that his punch knocked the complainant to the ground, he had turned around before delivering it to face the men coming up towards them, and that after this he and his friend just wanted to get home. He was then shown the CCTV footage of him walking quickly away and catching up with his friend, and raising his hand, and said that he was relieved at that point to be away from the conflict. He was also shown police BWC footage of their interaction with him some 20 minutes later, during which they told him that he matched the description of someone involved in an altercation, and he had replied with a story about having a doppelganger who gets around Civic who would ‘flog’ him if he gave out his name, but he resisted the prosecutor’s suggestion this was a lie, describing it as ‘might have been just a bunch of rubbish’ and ‘could have been just a bunch of drunk bullshit as well’. The question or suggestion was then put, that if he had been acting in self-defence, he would have been more forthcoming with the police, but this was objected to and not pressed further. He did point out that during that interaction, he gave the police his correct name, address, and date of birth, and they then left without requiring anything further from him or his friend.

42․In re-examination, the defendant clarified his account of the incident leading up to the punch, and that he had not been turned facing the complainant the whole time and thought that his friend Jackson had pushed them away and told them not to follow. This closed the defence case.

Consideration

43․Courts have been dealing with assault in the context of male confrontational violence for a very long time: Tuberville v Savage (1669) 1 Mod Rep 3 is cited in Gabriel at [94].

44․I give myself the standard directions that in a criminal trial the issue is always whether the prosecution has proved the elements of each offence beyond reasonable doubt, and that the defendant generally is not required to prove anything: Woolmington v DPP [1935] AC 462. That remains so even where, as in this case, the defendant has given evidence, though when this occurs, the defendant is subject to cross-examination and his credibility is to be assessed in the same way as that of any other witness in the proceeding. In assessing his evidence, which would exculpate him if accepted, I direct myself that if I accept or even find his version of events to be reasonably possible, I cannot find him guilty, but even if I do not, I must set it aside and assess the prosecution’s case made against him: Liberato v R (1985) 159 CLR 507.

45․Additionally, I am asked to give myself a direction that ‘in any case in which the sole evidence of the commission of a crime is that of a single witness, the evidence of that witness must be scrutinised with great care’: R v Murray (1987) 11 NSWLR 12; DPP v Jaram [2023] ACTSC 318.

46․In this case, there were other witnesses to the incident, as well as CCTV footage, so that this direction is of lesser application, but I must still assess the complainant’s evidence carefully as to its credibility and reliability. I note the definition in the Evidence Act 2011 (ACT) Dictionary:

credibility of a witness—means the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence.

47․The complainant’s evidence was honestly given, but with significant concessions that he was highly intoxicated at the time, and had poor memory of the events afterwards, including in giving his evidence. He corrected his memory of two hits to the face to a single punch. He accepted that he may have said the insulting words to the defendant but was not sure.

48․The defendant’s evidence was also somewhat unsatisfactory, as his memory was also vague at key points, and he and his companion had also both been drinking. He said that he ‘vaguely’ recalled punching the complainant, but that this would have been done ‘out of fear’. His minimisation of the force of the punch as ‘almost a love tap’ was not credible, and he resiled from it somewhat. His account of being relieved after leaving the conflict situation was credible, but the later doppelganger story was not inherently credible, and he said that it ‘might have been just a bunch of rubbish’, thus undermining his own credibility.

49․However, the prosecution’s case can only succeed if the offence elements are proved, though in some circumstances admissions made by a defendant can be used as part of its case.

50․As to the elements of assault, I am satisfied beyond reasonable doubt on the evidence that the defendant did inflict bodily force on the complainant, in the form of a punch to the head, and that was without consent. This is an assault unless it was lawful, by way of being in self-defence.

51․I am also satisfied that this punch caused actual bodily harm in the form of swelling of the face on the left side, bloody nose and lip, and a short-term loss of consciousness as a result. This level of injury is more than ‘merely transient or trifling’. Moreover, I am satisfied that the concussion suffered by the complainant is sufficiently connected with the defendant’s punch that it cannot be said to have been caused by a novus actus interveniens in the form of the police treatment of him, alarmingly and unnecessarily forceful though it may have been, as concussion is very much a reasonably foreseeable and a natural consequence of a punch to the head with sufficient force to knock the victim to the ground and to cause him to lose consciousness. That he suffered a further blow to the head at the hands of the police does not so overwhelm the defendant’s contribution as to ‘make the original wound merely part of the history’.

52․However, even with this finding, there will be no liability established if he acted in self-defence.

53․The defendant has discharged the evidentiary burden in relation to self-defence by the evidence of the defendant that he heard the threatening ‘I’m going to smash you’ remark made by a ‘super aggressive’ male, which put him in a ‘state of fear, absolutely’ and feeling ‘threatened’ that they were ‘going to get jumped’. This is sufficient to raise as a reasonable possibility that he had an honest belief in the necessity to act in self-defence. Taking his level of intoxication into account also, it cannot be excluded beyond reasonable doubt that he did form an honest belief that he had to use physical violence to escape a threat. However, more than this is required.

54․The second requirement is that there were reasonable grounds for the defendant’s belief that he had to act in self-defence. As Wilson, Dawson and Toohey JJ stated in Zecevic itself at [16]:

The question to be asked in the end is quite simple. It is whether the accused believed upon 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, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in that form, the question is one of general application and is not limited to cases of homicide. 

55․In the present case, the evidence establishes as a reasonable possibility that there were verbal threats as well as some pushing and shoving that occurred between the complainant’s group and the defendant and his companion near Mooseheads on the evening of 29 April 2022. The CCTV video footage shows only part of the altercation, being the part where the defendant punched the complainant and then left the scene. A picture may be worth a thousand words, but half a picture can be misleading. It is only by reference to this partial footage that the prosecution can assert that the defendant was the original aggressor. However, I have doubts.

56․If the sequence of events unfolded as described by both the prosecution witnesses who were present, being the complainant and Jackson, who was with the defendant, then there was a verbal altercation and some push-and-shove preceding the punch. This is consistent with the defendant’s evidence. A verbal threat of ‘I’m going to smash you’ may well be described as the first aggression, and subsequent pushing and shoving, which the defendant suggested may have been initiated by Jackson, may have been the first physical aggression. It therefore cannot be accepted that the defendant was the original aggressor, although only his punch is captured on the footage.

57․His post-incident conduct does not shift the dial. The body language captured in the immediate aftermath, where he walked quickly away to catch up with his friend and raised his hand, is far too ambiguous to support an inference that he was in a celebratory as opposed to relieved state of mind. His interactions with police some 20 minutes later, though they do not put him in a particularly good light, show him being generally co-operative and truthful, with the unlikely doppelganger story conceded by him in cross-examination as perhaps a ‘bunch of rubbish’.

58․Despite prosecution submissions that this constitutes an Edwards lie, there are reasons for the defendant to have offered this response when told that he matched the description of a person involved in an unspecified altercation, other than because he had a realisation of his own guilt: Edwards v The Queen (1993) 178 CLR 193, per Deane, Dawson and Gaudron JJ at [15]. He may have simply not been willing to be linked to some other assault that had occurred or have doubted that a claim of self-defence made to police at that time would have been believed. This is not enough for me to accept that his post-incident conduct should be used against him as an Edwards lie, particularly where he gave his true details to police, and they were content with that.

59․My decision then comes down to whether the second limb of the self-defence test has been disproved beyond reasonable doubt by the prosecution case. I am not at all persuaded that the defendant did act in self-defence, on reasonable grounds. But that is not the test. It is whether it is reasonably possible that he acted in self-defence on reasonable grounds. The evidence in this case leaves open as a reasonable possibility that he did have reasonable grounds, based on the preceding verbal threat to him and by the initiation of physical interaction by his friend and/or the complainant and his friend or friends, for a belief that he had to act as he did in self-defence.

60․Applying the test set out in Zecevic, if there is reasonable doubt about the matter, the defendant is entitled to an acquittal.

Orders

61․I dismiss the charge of assault occasioning actual bodily harm.

I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Special Magistrate Urbas.

Associate: Susie Kim

Date: 27 February 2024