Director of Public Prosecutions v Lawson and Ors (Ruling No.5)
[2012] VSC 531
•5 November 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0071 of 2012
No. 0072 of 2012
No. 0073 of 2012
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW LAWSON CAMERON SANDERSON BENJAMIN VIGO |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 November 2012 | |
DATE OF RULING: | 5 November 2012 | |
CASE MAY BE CITED AS: | DPP v Lawson & Ors (Ruling No.5) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 531 | |
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CRIMINAL LAW – Manslaughter – Defences not raised on the evidence – Unlawfulness – Whether jury should be instructed on trespass – Use force other than in self defence.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A Tinney SC with Ms N Warda | The Office of Public Prosecutions |
| For the accused Lawson | Mr I Hill QC with Ms R Shann | Tony Hargreaves and Partners |
| For the accused Sanderson | Mr M Tovey QC with Mr D Dann | |
| For the accused Vigo | Mr G Steward |
HIS HONOUR:
In the course of legal discussion after the close of the evidence in this case, counsel for the accused, particularly on behalf of Sanderson and Vigo, raised an issue as to whether the security staff at Crown casino had any right to apply force in circumstances other than self-defence.
Mr Steward, counsel for Vigo, pointed to the right to apply force in lawful ejection of a trespasser, and referred to Cowell v Rosehill Racecourse Co Ltd,[1] and to the legal obligations imposed on the owners of licensed premises to remove certain persons. Mr Tovey QC outlined a number of these legal obligations including that drunken or disorderly persons must not be permitted on licensed premises.[2] Mr Tovey QC also pointed to the right of citizen’s arrest and the summary offence of refusing to leave a licensed premises.[3]
[1](1937) 56 CLR 605; see also s 70 Casino Control Act 1991.
[2]Section 108(4)(b) of the Liquor Control Reform Act 1998; see also s 153C Casino Control Act 1991.
[3]See s 9(1)(f) of the Summary Offences Act 1966 and s 458 of the Crimes Act 1958.
The question therefore arises as to whether it is necessary for me to give directions to the jury that these are possible lawful excuses for the actions of the accused in the manner in which they dealt with the deceased, Anthony Dunning. In other words, though it was never quite articulated like this, should some defence be left to the jury based on these submissions. I approach this issue with the principle in Pemble[4] in mind and also the observations of Street CJ in Malas[5] to the following effect:
It is not the obligation of a trial judge to canvass the whole of the wide range of issues that might conceivably be advanced in every case, regardless of the manner of conduct of their respective cases by counsel for the Crown and for the defence. I do not believe that the observations in Pemble v R, should be taken to that extent.
[4](1971) 124 CLR 107.
[5](1978) 21 ALR 225, 232.
Until this point in the trial, the case has not been conducted on this basis in any respect. Witnesses who might have been able to give relevant evidence such as other security staff or those involved in training them at Crown casino were not asked any questions by any counsel about the use of force in ejection of a trespasser and/or in order to comply with what they understood to be the casino’s legal obligations. Further, and significantly, the accused did not say in their statements[6] which were handed to the police under the supervision of their solicitor, Mr Hargreaves three weeks after the incident, that they believed that Dunning was a trespasser and that what they were doing was done within their legal rights to eject a trespasser or as a part of their legal obligations to remove persons who are drunk, violent or quarrelsome. In my opinion, there is no evidence on which such a belief could be inferred on the evidence as it stands.
[6]Exhibits C, D and E.
However, there was some foreshadowing of the issue - Mr Tovey QC, on behalf of Sanderson, raised the legal obligations to exclude drunk patrons in his opening.[7] It is also referenced to in evidence – in the “Crown Security Experienced Officer Training Manual”, tendered as Exhibit L, in a section on “Acts of Parliament”, the legal rights and obligations are referred to, although until now no counsel has drawn attention to this section except insofar as Mr Dann, junior counsel for Sanderson, has urged me not admit those parts because they are irrelevant. That is perhaps an involuntary indication of how late in the process this issue was considered.
[7]Transcript, p 230; Defence to Summary of Prosecution Opening, at [28].
Mr Steward sought to refer to the evidence of the witness Peat as illustrating that the shutdown position, which was applied to Mr Dunning, may be used when a patron refuses to leave. It is sufficient to say that I do not accept that interpretation of the evidence.
Thus, the question I must now address is whether aversion to an issue in opening, and the tendering of a document which may be used to conclude that the accused had knowledge of these rights and obligations is sufficient to provide a defence that should be left to the jury and which the Crown must negative?
The fact that counsel for each accused has not made clear throughout the trial that they would be relying on these grounds, does not of itself, mean that they should not be put.[8] The Crown must negative a defence which is “fairly raised” on the evidence.[9] In respect of self-defence, and the same principle would apply to the defences said to arise here, Penfold J of the ACT Supreme Court, expressed the requirement as follows:[10]
It is clear that the prosecution does not have to actively rule out self-defence in every case involving any kind of assault. The obligation to exclude self-defence by proving beyond reasonable doubt that one or other element of the test for self-defence is not made out only arises if the evidence in the case actually points to self-defence as an issue.
[8] Howe v R (1980) 32 ALR 478, 482; Pemble v R (1971) 124 CLR 107, 117-18.
[9]Falconer (1990) 171 CLR 30, 41.
[10]Lukatela v Apostoloff [2009] ACTSC 167 [28].
In that case, the defendant was a police officer who had been convicted of assaulting a person by spraying capsicum spray in their face as they stood at the front desk. Penfold J stated that:[11]
It may be true that neither the CCTV material nor the briefing about Mr Helmhout’s behaviour when arrested, of itself, would raise any issue of self-defence, but taken together and in conjunction with Commissioner’s Order 3, the “Use of Force” report and Ms Apostoloff’s evidence quoted in [21] above, I consider that self-defence was raised in a sufficiently credible way to require the prosecution to negative it before the charge could be sustained.
[11]At [33].
In that case, the “Use of Force” report alleged that Mr Helmhout was being aggressive and was about to escalate and Ms Apostoloff’s evidence was that she believed she had used the capsicum spray in accordance with Commissioner’s Order 3, that it was necessary to defend herself.
In the present case, the CCTV footage of the incident is before the jury. That footage does not of itself suggest that the accused acted as they did in order to comply with their obligations to eject a drunken or disorderly patron. There is also the manual which could be likened to the Commissioner’s Order 3, which outlines the accused’s lawful entitlements. What is missing, in my opinion, is any evidentiary basis to indicate that the accused purported to act under those entitlements at the time they committed the alleged offences they are now charged with in relation to Mr Dunning.
In Grimley,[12] the Queensland Court of Appeal stated:
One way, perhaps, of testing whether a defence is fairly raised on the evidence is by attempting to construct a sensible direction, on the basis of the evidence given.
[12][2000] QCA 64.
I find it difficult to formulate a direction which would leave the issue in the jury’s hands. Mr Tovey QC stated that whether Dunning was a trespasser is simply a question for the jury. There are a number of inherent difficulties in that question. Could Dunning have been a trespasser when he was moving towards the exit and only stopped doing so when his friends were (perhaps unlawfully) placed on the ground? If it is correct that it would not be lawful to apply force in order to eject as a trespasser a person who is lawfully acting in the defence of others, then perhaps Dunning is not a trespasser. But for good reason the jury lack any information about the reasons for, and circumstances of, Ferguson and Anderson being placed on the ground.
Furthermore, in respect of the level of force that it may be permissible to use, in the circumstances that exist in this case, if the accused were not acting in self-defence, then I cannot see that they could have been acting in their lawful rights to eject a trespasser. Although, in other circumstances, force could be lawfully applied in order to eject a trespasser where no issue of self-defence arose, here, if the manner in which the initial takedown occurred was not necessary in self-defence it could not have been necessary in order to eject the trespasser. If keeping a person facedown on the ground was not necessary in self-defence, it is difficult to understand how that could be necessary to lawfully eject him. “No more force than is necessary” would require Dunning to have been brought up off the ground and led out. There is simply no further defence that arises with respect of trespass than is already encompassed within self-defence. As this is not a defence to the charges which arises on the evidence, I will not leave it for the jury’s consideration.
It should be noted that the obligation to not permit persons who are drunken or disorderly to remain on licensed premises, would not give rights or obligations to apply force over and above that which applies in the lawful ejection of a trespasser. Indeed, it seems likely that the obligation created is merely that the patron be requested to leave. Once that is done, a patron who refuses becomes a trespasser and it is the law of tort and the criminal law which operate to govern the subsequent removal, even if that is done in order to complete the legal obligation.
Although the manual does inform of the right of citizen’s arrest and a number of offences for which this may be done, there is no suggestion that the defendants were doing so here. Indeed, no employee from Crown casino called the police about the incident. This is clear evidence that the accused did not consider themselves performing a lawful citizen’s arrest.
I therefore do not propose to leave to the jury any defence on the element of unlawfulness in either the manslaughter count against Lawson and Sanderson or the assault count against Vigo that relies on a belief of entitlement to use force based on the possibility that because Anthony Dunning may have been intoxicated, he may have been a trespasser on the premises at Crown casino.