Foley v The The Queen

[2022] NSWDC 122

District Court

New South Wales

Medium Neutral Citation:

Foley v R [2022] NSWDC 122

Hearing dates:

11 April 2022

Date of orders:

22 April 2022

Decision date:

22 April 2022

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Appeal dismissed; conviction confirmed.

Catchwords:

APPEAL – Assault occasioning actual bodily harm – in company.

Legislation Cited:

Crimes Act 1900

Crimes (Appeal and Review) Act 2001

Supreme Court Act 1970

Cases Cited:

Charara v R [2006] NSWCCA 244

McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298

Category:

Principal judgment

Parties:

Director of Public Prosecutions (Crown)
Kerry James Foley (Appellant)

Representation:

Solicitors:
S. Amvrazis (Crown)
J. McLoughlin (Appellant)

File Number(s):

19/392929

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

13 May 2021

Before:

Magistrate V Swain

Judgment on appeal

1. On 13 May 2021, the appellant was convicted of an offence pursuant to s 59(2) of the Crimes Act 1900 of assault occasioning actual bodily harm, following a hearing in the Local Court. That hearing took place over three days on 16 and 17 November 2020 and 26 March 2021.

2. The appeal is by way of rehearing based on the transcript of evidence before the learned magistrate and the exhibits in those proceedings. In determining the appeal, I am to apply the principles governing appeals for a judge sitting without a jury, and I am to form my own judgment of the facts on the basis of the transcript evidence and the exhibits (in this case, including the CCTV footage of the premises), recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court – see Charara v R [2006] NSWCCA 244 per Mason P at [18].

3. In McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298, Bell P said in respect of an appeal pursuant to s 18 of the Crimes (Appeal and Review) Act 2001 (“CAR Act”) at [25]:

“An appeal is from orders, not reasons, and such error will be identified, if at all, by the process of rehearing. The task for a District Court judge in hearing a section 18 appeal is to form his or her own judgment on the facts and to determine, on the basis of the evidence that was before the magistrate… whether that evidence was sufficient to demonstrate the appellant’s guilt beyond reasonable doubt. If it did not, error will have been established. Error of law in reaching the conviction may also be established and the rehearing will involve the court reaching a fresh conclusion as to the appellant’s guilt on the basis of evidence given in the Local Court, but without the error of law which tainted the result at first instance. Such a hearing will, however, not be a hearing de novo.”

4. McNab was a case that concerned an application for judicial review of a District Court judge’s decision to dismiss an applicant’s appeal against conviction, pursuant to s 69 of the Supreme Court Act 1970. Notwithstanding that, the Court of Appeal reviewed both the history of the CAR Act and its judicial construction, holding that the reasoning of Mason P in Charara as set out above, should be accepted (at [77]). The Court also held that on an appeal pursuant to s 18, there was no prohibition on the appeal court having access to the reasons for judgment in the Local Court, including any findings by the magistrate as to a witness’ credibility (see Bell P at [31] and Baston and McCallum JJA at [73]).

The charge

5. Section 59 of the Crimes Act provides as follows:

59   Assault occasioning actual bodily harm

(1)   Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years.

(2)   A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years.

6. The elements of the offence that the Crown has the onus of proving beyond reasonable doubt are therefore as follows:

1. That the accused was in company with another person or persons; and

2. That the accused assaulted the victim; and

3. As a consequence of that assault, the victim suffered actual bodily harm.

7. “Actual bodily harm” is to be given its ordinary meaning and includes any injury calculated to interfere with the health or comfort of the victim, but such hurt or injury need not be permanent but must be more than merely transient and trifling.

The evidence in the Crown case

8. The Crown case concerned an incident that occurred at premises known at “Old Manly Boatshed” on 24 November 2019. The complainant was Dylan Sheehan, who attended those premises with a number of friends to celebrate his birthday. He arrived at approximately 7pm to help set up music equipment for bands that were to play in the premises that night. He was to play in the final band, which was due to play at approximately 10pm.

9. The first witness called in the Crown case was Senior Constable Matthew Jackson through whom were tended the following documents:

Exhibit 1 – Statement of Matthew Jackson dated 10 February 2020

Exhibit 2 – Diagram of Old Manly Boatshed toilet drawn by Matthew Jackson on 16 November 2020

Exhibit 3 – Statement of Jessica Tyrell dated 6 March 2020

Exhibit 4 – Statement of Eve Warren dated 10 February 2020

Exhibit 5 – Statement of Sam Carlon dated 15 February 2020

Exhibit 6 – Statement of Jamie Knapp dated 5 December 2019

10. The proceedings were being heard with the prosecution of a co-accused, Tapaatoutia, who was charged with the same offences. Senior Constable Jackson was cross-examined on behalf of both accused persons. He gave evidence that the premises and in particular the bathroom where the alleged assault took place were never examined by police. The cross-examination also established that both accused arrived at the premises at 11.18pm, and that CCTV evidence established that they entered the toilet at 11.33pm, followed a short time later by the complainant. Senior Constable Jackson also agreed that the appellant left the bathroom at 11:37:40 hours alone but returned at 11:38:10 hours. At 11:38:20 hours, both accused persons left the bathroom.

11. The complainant, Dylan Sheehan, gave evidence that from 7pm until 11.30pm, he had consumed about five beers. He was asked:

“Q.   In terms of your level of intoxication, how were you feeling?

A.   I would say not particularly intoxicated. I still had a lot of responsibility on the night, so trying to enjoy myself but obviously knowing that it was a work event that I was hosting, I had to have a, yeah, clear-headed mind.”

12. Mr Sheehan gave the following evidence:

“Q.   Could you tell the court what happened when you went to the bathroom?

A.   So I went into the bathroom, I guess, you know, as you do, open the door, walked in, went to open one of the cubicles, so there’s two cubicles and the closest one, so I went to open that –

Q.   Was the door to that cubicle closed?

A.   I believe it was slightly open…

Q.   What happened from there?

A.   So then pushed the door and felt obviously that there was a person or something stopping the door from opening.

Q.   Did you say anything?

A.   Yeah, so I said, like sorry. I realised there was someone in there.

Q.   Was there any response from that person?

A.   There was some verbal response but I can’t recall what it was, but I soon realised that there were two people in so like, I – within the time of not realising anyone was in there to pushing the door to maybe two voices, to realising there were two people in there.

Q.   I’ll take you back to that verbal response you mentioned. What was the tone of that response?

A.   I wouldn’t say friendly, I would say aggressive.

Q.   When you received that verbal response, what did you do?

A.   So I apologised, I said like, sorry mate, then took a few steps backwards to go into the other cubicle…

Q.   Did you actually walk in to cubicle two?

A.   I was on my way in when the two people inside cubicle one walked out…

Q.   You hadn’t actually entered cubicle two at this point?

A.   No.

Q.   What has happened from that point?

A.

   So then I was struck.

Q.   I want you to describe the two males, two people that you saw come out of cubicle one.

A.   I guess both were large in stature, muscular, let’s say one Pacific Islander appearance and the other equally – well maybe not equally sized but I would say Caucasian…

Q.   Was anything said between anybody at this point?

A.   I don’t believe so, no.

Q.   What is the next thing that’s happened?

A.   So I was struck by the person of Pacific Islander appearance…

Q.   How many times were you hit by this person?

A.   I – by this person, it was within two or three I would say…”

13. Mr Sheehan gave evidence that he pushed the person of Islander appearance back by extending his arm against his chest. He then gave the following evidence:

“Q.   How far back did he go?

A.   I don’t know, like maybe a footstep.

Q.   What happened from there?

A.    Then I was struck by the Caucasian male.

Q.   How did he strike you?

A.   Clenched fist to the face.

Q.   Can you recall which hand?

A.   I can’t.

Q.   Do you remember where on the face you were struck?

A.   At that point it was hard to tell exactly. I think I had a lot of adrenalin, but I think once on the jaw as well. And then I think once again, maybe skimming my face, because from that point I had like a severe ringing in my ear.

Q.   Do you remember how many times you were hit by this gentleman?

A.   I believe it would be, once again between two and three, but I would say more likely two.

Q.   Was it the same fist or a different fist?

A.   I can’t recall. By that point it was – I was obviously struggling to comprehend what was happening. I had a headache and ringing in my ears…

Q.   What happened after the Caucasian male punched you?

A.   So I fell into the wall next to the cubicle, so the far – the second cubicle two let’s say. I fell up against the wall on that cubicle, and I just kind of held myself up, half pried against the wall, and from there the only things that I can really remember are the two people having a conversation about a phone on the ground, so they were talking to each other about the mobile phone that had fallen out of my pocket, so they were asking each other, you know, is this your phone, not to me but to each other…

Q.   What happened from that point?

A.   From that point, I’m pretty sure, yeah, from that point they left the bathroom.

Q.   Did your phone remain on the ground?

A.   No.

Q.   Could you tell the court what happened to your phone?

A.   So, one of two people must have taken the phone.

Q.   Did you see them take the phone?

A.   I did not.”

14. Mr Sheehan gave evidence that he was feeling “a bit scared and a bit hurt” and was bleeding from his jaw and that his tooth had gone through his lip. He gave evidence that he immediately notified the bar staff that he’d been assaulted in the bathroom. Whilst he was doing that, he noticed the person of Islander appearance on the dancefloor of the bar and pointed that person out to the staff. He then saw him walk up the stairs.

15. Mr Sheehan gave evidence that he saw the Caucasian male standing in a section of the bar. He could see that he was wiping his knuckles of blood and that his sister Hayley and his girlfriend Katie approached the man. He was not able to hear their conversation.

16. Mr Sheehan marked an “X” on Exhibit 2, indicating where he was when first confronted by the two males in the bathroom of the premises. He also marked that diagram with a “T” indicating where the Islander male was and an “F” indicating where the Caucasian male was. He gave evidence that whilst waiting for the police to arrive, five photographs were taken of him which became Exhibit 7.

17. In cross-examination, Mr Sheehan gave evidence that he was feeling the effects of the alcohol that he had consumed that night but that he had quite a high tolerance to alcohol. A number of inconsistencies in his police statement made on 25 November 2019 were put to him. First, in paragraph 7 he had stated “I walked towards the closest cubicle door which was shut but unlocked and attempted to walk into it”. He was asked:

“Q.   Was it shut or was it slightly ajar by 30 centimetres?

A.   I would say slightly ajar.”

18. He agreed that in his statement he said the door was shut and he agreed further that there was a difference between a shut cubicle door and one that was slightly ajar by 30 centimetres.

19. Mr Sheehan gave evidence that he could hear voices from inside the cubicle but could not hear what was being said. He assumed that the persons in there were “probably doing drugs”.

20. A further inconsistency was in paragraph 9 of his statement where he said, “I was standing in the cubicle and once I realised they were behind me, I turned around and faced them.” He was asked:

“Q.   You were inside the second cubicle?

A.   I believe I was half in the cubicle at best.”

Mr Sheehan agreed that his statement did not say that he was “half in the cubicle”.

21. Mr Sheehan gave evidence that the two men were “a metre” away from him and that the Pacific Islander man punched him two or three times with heavy punches. After the first hit, he agreed he felt disoriented, and he agreed he pushed that person backwards. Besides feeling disoriented, he also felt a bit dizzy after the first punch and felt like he was lacking coordination.

22. After pushing the Pacific Islander male, Mr Sheehan gave evidence that he was then struck by the appellant, who was standing diagonally to his left. He agreed that he was looking at him through his peripheral vision, and that his main focus was still on the Pacific Islander male. He believed he was hit twice by the appellant but said:

“A.    I think after the first one it was hard to, yeah, it had made it hard to be conscious, I guess. I was disoriented extremely.”

23. Mr Sheehan gave evidence that the first punch was to the jaw, but he was not sure what side of the jaw. The defence case was put to him:

“Q.   Is that because it never happened?

A.   Is that because it never happened?

Q.   Yes.

A.   No, it definitely happened.”

24. He gave evidence that the second punch would have hit his cheekbone.

25. Mr Sheehan confirmed that he didn’t see anyone pick up his phone. He was asked:

“Q.   Are you assuming the phone was picked up at this point?

A.   I didn’t, no, I didn’t assume anything at that point, I was just concerned with my own safety.”

26. He gave evidence that both men left at approximately the same time or within 30 seconds of each other. He denied that one of the males left and came back in. He was asked:

“Q.   When you saw them leave, did you then look back to where your phone had slid to?

A.   Yes, and it wasn’t there.”

27. The defence case was put to Mr Sheehan as follows:

“Q.   When you walked into the bathroom, you could hear two males before you approached the cubicle you could hear two males in there talking, couldn’t you?

A.   No.

Q.   I suggest to you that that cubicle door, the first cubicle door, was closed and locked. Do you agree with that?

A.   I disagree.

Q.   Not ajar or unlocked as you suggest, it was actually shut and locked.

A.    I disagree strongly with that.

Q.   I suggest you approached the cubicle and you said words to the effect, “Oi, give us a bump”?

A.   No.”

28. Mr Sheehan agreed he knew the expression, “give us a bump” was colloquial slang for doing drugs. He denied saying that to the two males in the cubicle. He also denied that one of the males said to him the words “Fuck off”. He also denied that he said to one of the males inside the cubicle “I know what you’re doing in there” and denied a male replying “I don’t give a fuck”. The defence case was further put:

“Q.   What I suggest to you is that you then barge into the cubicle door and it opened. The cubicle the two males were in. You barged in there with some part of your body and the door popped open. Do you agree with that?

A.   No. Was there a broken lock or something that suggests to you that that’s something that –

Q.   I’m putting to you, do you agree that you barged against the cubicle door and it popped open?

A.   No…

Q.   After you presented with or saw the two males in the cubicle, I suggest to you that the Pacific Islander male then walked out of that cubicle towards you.

A.   Yes.

Q.   What I’m saying is that he walked out towards you whilst you were at the entrance of their cubicle.

A.   I was entering the cubicle next to it.

Q.   After the Pacific Islander male exited the cubicle, the Caucasian male came out behind the Pacific Islander male. Do you agree with that or not?

A.   Yes.

Q.   What I suggest to you is that as soon as the Pacific Islander male exited the cubicle and walked up to you, you then threw a punch to the Pacific Islander male’s head.

A.   That’s wrong.

Q.   Are you saying you threw no punches on this evening? Nothing at all?

A.   No.

Q.   On your version the only physical action you took was what, the push?

A.   The push to get someone off me, yes.

Q.   What I suggest to you is that after you threw a punch at the Pacific Islander male’s head, which you’ve denied, the Pacific Islander male then grabbed you around the body with some sort of tackle?

A.   No.

Q.   You then both fell to the ground or the floor, do you agree with that?

A.   I disagree.

Q.   Were you ever on the floor during this incident?

A.   I was leaning up against the wall at one point but I believe that I was never solely on the ground, no.

Q.   You believe, you’re not too sure?

A.   Yeah I’m sure. I’m 100% sure, yes.

Q.   You weren’t on the floor?

A.   I wasn’t on the floor and there was no wrestling involved.

Q.   What I suggest to you is that whilst you and the Pacific Islander male were on the floor, you were both wrestling and throwing punches at each other?

A.   That’s wrong.

Q.   With the punches of the Pacific Islander male making contact with your body and vice versa, do you agree or disagree with that?

A.   I disagree.

Q.   Then what I suggest to you is that at that point, whilst you were on the ground, the Pacific Islander male on top of you or partially on top of you, the Caucasian male then from behind grabbed the Pacific Islander male and pulled him off you. Do you agree with that or disagree?

A.   Disagree.

Q.   The Caucasian male, I suggest to you, said to the Pacific Islander male, as he pulled him off you, “Let’s go, let’s go”.

A.   No, I disagree.

Q.   Did you ever hear the words, “Let’s go, let’s go” in the bathroom?

A.   No.

Q.   I suggest to you at that point you were trying to stand up from the floor?

A.   I don’t believe I was on the floor. I was up against the wall at the back.

Q.   I suggest to you at that point the Caucasian male walked out of the bathroom leaving the Pacific Islander in the bathroom.

A.   As I said before, I don’t know who – they left very quickly together within not a big break in between.

Q.   If I can suggest to you this, the Caucasian male walked out of the bathroom and came back in a short time later, do you remember that?

A.   No.

Q.   Then when he came back into the bathroom, the Caucasian male, you and the Pacific Islander male were standing and facing each other in the bathroom. Do you agree with that?

A.   No.

Q.    I suggest to you at that point, you threw a punch at the Pacific Islander male’s head and that punch missed his head.

A.   No.

Q.   Then at that point I suggest the Pacific Islander male tackled you into a cubicle door, being the cubicle next to the one they had been in to start with, he tackled you into that second cubicle door. Do you agree with that?

A.   No.

Q.   Then I suggest to you at that point you and the Pacific Islander male were standing and grabbing each other, that is grabbing at each other.

A.   No.

Q.    Do you agree with that or not?

A.   I disagree.

Q.   At that point I suggest the Caucasian male ran up to the Pacific Islander male and grabbed him from around the neck and said, “Let’s go, let’s go”.

A.   I disagree.

Q.   At that point I suggest to you the two males walked out of the bathroom.

A.   I agree they walked out of the bathroom but I don’t agree on the previous statements.

Q.   I suggest there was no conversation in the bathroom about the phone in your presence?

A.   There was a conversation about the phone.

Q.   I suggest to you the phone wasn’t taken at that point when you went in the bathroom?

A.   It was, so I disagree with that.

Q.   What I’m suggesting to you, sir, is that the version you told the court today about what happened in the bathroom simply isn’t correct, isn’t that right?

A.   No, it is correct.

Q.    Is it because you’re trying to leave out a part where you wanted to obtain some drugs from these two males, is that why you’re leaving it out?

A.   I’m not leaving anything out.

Q.   Because you realise it might make you look bad?

A.   I don’t mind about that. That’s not why I’m here.

Q.   Isn’t that why the incident started? Because you wanted some drugs off these males?

A.   No it isn’t.

Q.   That’s why you forced your way into the cubicle?

A.   No.

Q.   I suggest to you sir, that you were the initial aggressor in this incident. Do you agree or disagree?

A.   Disagree.

Q.   That is the initial aggressor by forcing the cubicle door open, agree or disagree?

A.   Disagree.

Q.    You know full well sir, that the Caucasian male never assaulted you. That is, he never hit you. Do you agree or disagree?

A.   Disagree.

Q.    You know full well sir that the Caucasian male was trying to pull the Pacific Islander male away from you during the incident?

A.   Absolutely disagree.

Q.    Was it the case sir that you’re simply confused about what happened in this bathroom?

A.   No.

Q.    Because you said on your own evidence you were disoriented after your first hit by the Pacific Islander male.

A.   Yes, I was disoriented but I can still understand the sequence of events that happened. Maybe not the exactly, you know one spot of where I was standing in the room or another, but I can tell you I was assaulted by two men. No wrestling and it was just punches to the face.”

29. In cross-examination by counsel for the co-accused, the complainant agreed that it was a possibility he had a bottle of beer in his hand when he went to the bathroom, and he agreed that he had not mentioned that in his evidence. He gave further evidence that when he walked into the bathroom he was definitely not aware that people had entered immediately in front of him. It was put to the complainant that he in fact walked into the bathroom immediately after the two accused persons as depicted in the CCTV footage. He answered:

“A.   I – yeah, I don’t think I was immediately after, I mean, as you can see, my head was turned, I was waving to someone else. I wasn’t aware I guess necessarily of if someone had just entered the bathroom before me.”

30. In re-examination, the complainant gave evidence that he had not noticed the two men prior to going to the bathroom at about 11.30pm that night and that he had never seen them before.

Evidence of Hayley Sheehan

31. The complainant’s sister, Hayley Sheehan, gave evidence that she arrived at the Manly Boatshed on 24 November 2019 at about 9:30pm. She was there with a number of friends and had consumed three or four beers. She gave the following evidence:

“A.   We were just talking and then I saw Dylan come out of the bathroom and yeah, he just looked really distressed and it took me kind of a moment to realise that his shirt was completely covered in blood and there was blood kind of spurting out of his mouth and his face was pretty covered in blood as well.

Q.   You said he looked distressed, what do you mean by that?

A.   He just looked really shaken and was kind of teary and upset and really like scared to be honest.

Q.   What happened then?

A.   Well I obviously asked Dylan what had happened and he, yeah, shakenly just said that he had been bashed by two men in the bathroom.

Q.   He just said two people?

A.   Two guys in the bathroom, yeah…”

32. Ms Sheehan gave evidence that she observed someone coming out of the bathroom who quickly walked up the stairs to leave the premises. She followed the person up the stairs with Dylan and her friend Katie and said she was “calling out, trying to chase them down”. She was calling out “Did you bash my brother” and the person was just walking away.

33. Ms Sheehan gave evidence that the complainant stopped her from going after the man. They then went back downstairs where she observed a man who was holding his knuckles which were bleeding. She said to him “Did you just bash my brother”. She gave the following evidence:

“Q.   When you said to him, “Did you bash my brother,” did he respond?

A.   Yeah, I think he was mostly trying to say that he didn’t, but it seemed very clear that his knuckles were bleeding, like freshly cut kind of.

Q.   When you say, “I think he was trying to say” can you recall the actual words he was saying?

A.   I think he was trying to say that it was an old injury, that he was a fighter or something, some kind of boxer and that was an old injury, but he was kind of holding it in a way that indicated, you know, it was something fresh and it just happened.

Q.   Did he say anything else to you?

A.   I think at some point he kind of changed his argument to say that he had been trying to help my brother, that he’d seen some altercation and tried to say that he had helped my brother, but like my brother was very adamant and I think said that like no, he wasn’t, no, he was part of it.

Q.   Was Dylan nearby when you had this conversation?

A.   Yeah, from memory he was coming close. I think he was probably, I don’t know, more concerned about his face and the pain.

Q.   When this male said he was trying to help your brother and that he had seen the altercation, did Dylan say anything at that point or did you go and tell him what this male had said?

A.   From memory, Dylan was there and Dylan was saying, no, he didn’t.”

34. In cross-examination, Ms Sheehan gave evidence that she thought it was the left-hand of the accused that was bleeding and it was across his knuckles. That meant “like each knuckle on the hand was kind of bleeding”. She saw the accused dabbing it with a towel or napkin. She was asked:

“Q.   Did it look to you like a scab that had been picked open? Did it look like that to you?

A.   It didn’t seem that way, no.”

35. Ms Sheehan agreed that the accused had said words the general consensus of which was that he was trying to help her brother and that the general flavour was that he didn’t hit her brother, to which she replied, “Yeah, I guess so”.

Evidence of Katie Milton

36. Ms Milton gave evidence that she was the complainant Dylan Sheehan’s partner and that she went with friends to the Manly Boathouse at about 7pm on 24 November 2019. Between 7pm and 11pm she probably had about four beers. At about 11.30pm, she was standing in the bar near the male toilets. She gave the following evidence:

“Q.   What’s the next thing you noticed?

A.   Dylan kind of came out of the bathroom covered in – he had blood all over his shirt, like he was bleeding on his face, there was blood coming out from under his lip and he kind of came over to the bar, seemed like really frazzled or like shaken up, and immediately told the bar staff that he had been assaulted in the bathrooms.

…

Q.   What’s the next thing you saw?

A.   One of the men came out of the bathroom and Dylan kind of pointed him out and was like ‘That’s one of the guys that hit me’.”

37. Ms Milton described that person as being “like big build Islander male”. She saw him walk up the stairs to the exit and then Hayley, Dylan’s sister, went after him and Dylan was telling her to stay back in case she got hurt too. She then followed them up the stairs.

38. Ms Milton gave evidence that they went back downstairs to the bar and she observed the accused come out of the bathroom, and was wiping his hands with a tissue or hand towel from the bathroom. She gave the following evidence:

“Q.   Do you remember which part of his hand he was wiping?

A.   His knuckles.

Q.   What’s the next thing that’s happened?

A.   He kind of like really cavalierly walked to the front, like where the dance floor area was, and Hayley, Dylan’s sister was quite upset and she kind of walked over to him and I went with her and kind of approached him and she asked if he’d hit her brother, and kind of questioned why his hand was bleeding, because they looked like fresh cuts. Then he said, ‘Trust me, I’m a fighter and you don’t get cuts like this from punching someone’, but he’d obviously – I mean his hands were freshly bleeding. Then Hayley kind of just kept like questioning him, then he turned around and walked away.

Q.   When Hayley kept questioning him did he respond at all?

A.   Kind of just like denying I guess.

Q.   Denying hitting Dylan?

A.   Just saying that like the cuts weren’t from punching someone.”

39. Ms Milton gave further evidence that the accused said something about Dylan “barging in”.

40. In cross-examination it was put to Ms Milton that the accused had said to her group that he was trying to protect Dylan or words to that effect. She said, “No, I didn’t hear anything of that”.

41. Ms Milton gave the following evidence:

“Q.   So prior to leaving the Boatshed, Dylan didn’t say anything to you about what happened inside the bathroom? Is that what you are saying?

A.   All he said was that he was attacked and assaulted by these two men.

Q.   But he didn’t say what happened during the attack?

A.   No.

Q.   Did he mention anything to you that he’d asked these males for some drugs?

A.   No.

Q.   Did he mention anything about drugs in the toilet?

A.   The only thing he mentioned about drugs was that he’d accidentally like opened the door to the cubicle and these two men were doing drugs in the toilet and then they attacked him.

Q.   Did he say that in the Boatshed or did he tell you that later on?

A.   Later on.”

Evidence of Remy Vouskila

42. Mr Vouskila was a friend of the complainant and Hayley Sheehan, who was at the Old Manly Boatshed on 24 November 2019. At about 11.30pm, he had noticed that the complainant went to the bathroom and he was chatting with the complainant’s girlfriend Katie Milton. He observed Dylan Sheehan to return from the bathroom with blood on his face, blood coming down from his nose on his chin and blood on his shirt. He saw Dylan rush out of the bathroom and go directly to the bar and heard him telling the bartenders to call the police. He gave the following evidence:

“Q.   What’s the next thing that you can recall?

A.   So Dylan told me he had been assaulted in the bathroom.

Q.   Did he say by whom?

A.   He said a couple of guys.”

43. Mr Vouskila gave evidence that he went upstairs with Katie Milton as he assumed that the assailants had already left. Once he got onto the street, he saw a couple of guys walking away on Darley Road. He then went back downstairs to the bar. He gave the following evidence:

“Q.   What did you do when you got down the stairs?

A.   So at that moment another gentleman came out of the bathroom.

Q.   Yes?

A.   And Dylan identified them as one of the gentleman who had beaten him    up.

…

Q.   So what happened after Dylan identified him?

A.   So Hayley noticed his hand and started – she was quite traumatised and was you know questioning him quite loudly like, ‘What did you do, why is your hand bloody’. I mean that’s when I noticed that his hand was bloody and wrapped in a – in some paper towels from the bathroom and, and, that’s when the bouncer came and essentially was trying to de-escalate the situation.

Q.   After the security guard got involved, did the male stay there?

A.   He was sort of like arguing and trying to get away and then he went over to the dance floor and talked with someone and then I stopped paying too much attention as to what he was doing and turned my attention back on to Dylan.”

44. In cross-examination, Mr Vouskila confirmed that Dylan Sheehan told him that he had been beaten up by two guys. He gave evidence that he could not hear the accused saying words to the effect that he was trying to help Dylan, nor did he hear anything being said about Dylan barging into the bathroom. He gave evidence that he didn’t see the accused’s hand underneath the paper towel. He could however see blood coming through the paper towel. He did not see the accused leave the premises, but did not agree with a proposition that he was in no rush to leave.

45. Exhibit 7 comprised five photographs taken by Mr Vouskila of the complainant in the bathroom. He noticed broken glass and some blood on the floor and asked Dylan what happened. Dylan told him that two guys were doing “coke”, meaning cocaine, in the bathroom stall. He gave the following evidence:

“Q.   Did he say anything about how the two people or persons apparently doing lines came to be involved in assaulting him in any way?

A.   Dylan had said that he had maybe asked them ‘how we doing?’ and then they sort of like got sarcastic with him and then yeah, assaulted him

…

Q.   Did he mention ever, at any point, being on the ground in the bathroom?

A.   Yes.

Q.   What did he mention about being on the ground?

A.   That he was on his back trying to defend himself from being attacked.”

Evidence of Daniel Noe-Jewell

46. Mr Noe-Jewell gave evidence that on 24 November 2019 he was working as a bartender at the Old Manly Boatshed. He gave evidence that at about 11.45pm he was outside the premises having a cigarette when he saw a man he described as a Pacific Islander leave. That person was followed by the complainant, who he described as having blood all over his face and all over his shirt. He was with a female. Mr Noe-Jewell gave evidence that he heard the complainant accusing the Pacific Islander male of hitting him. The Pacific Islander walked away and he returned downstairs to the bar to speak to the manager. He gave evidence that the complainant then returned downstairs with the female and they started to accuse another man of punching the complainant. He had known that person for a few years and knew that his name was Kerry. When he was accused of assaulting the complainant, Kerry said that he didn’t. He gave evidence that during that confrontation, he noticed that Kerry was icing his hand, meaning he had a paper towel with some ice in it on his hand. After the confrontation, he gave evidence that Kerry left pretty quickly.

47. In cross-examination, Mr Noe-Jewell gave evidence that he could not see under the ice in the paper towel and couldn’t see Kerry’s hand. He agreed that the person who was assaulted was distressed and that Kerry was defending himself “pretty calmly”, and didn’t seem to be aggressive at the time. He could not recall Kerry saying that he was trying to help the complainant.

The evidence of Nicholas Asprey

48. Mr Asprey was employed to stand at the front door of the of the Old Manly Boatshed on 24 November 2019. His job was to check patron’s IDs and whether they were intoxicated or not on the way in. At about 11.30pm, he recalled a group of people coming up the stairs and leaving the premises. One was of Pacific Islander appearance who came out with two other men. He was followed by the manager of the premises, whose name was Eloise, and a man with blood on his face with two female friends. As she came up the stairs, the manager said, “That guy committed an assault” and Mr Asprey didn’t know who she was referring to.

49. Mr Asprey completed the incident log, which became Exhibit 12. In that document, under the heading “Incident Summary”, was written:

“Patron Dylan Sheehan attacked/punched by two guys in toilet.”

50. In Part B of the document, under the heading “Incident Report”, the following entry appeared:

“Dylan Sheehan attacked/punched by two males in male toilet.

1 x perpetrator of Pacific Islander appearance in grey t-shirt.

Perpetrators left premises.”

51. There was no cross-examination by counsel for the appellant.

Evidence of Eloise Feuw

52. Ms Feuw was the manager of the Old Manly Boatshed on 24 November 2019. She gave evidence that whilst working behind the bar, she noticed a man of Pacific Islander appearance walking really fast out of the bathroom and went up the stairs. After that, Dylan Sheehan came out of the toilet and his face was covered in blood. He came straight to the bar and said that he said, “I’ve just been attacked”. She gave this evidence:

“Q.   Did he say by whom?

A.    By a big Islander man was all he’d say and I then turned… and ran upstairs to my security guards.”

53. Ms Feuw gave evidence that she went up the stairs and spoke to her security guard and at that point she decided to call the police. She went back downstairs and called the police from the bar. Ms Feuw then gave evidence about speaking to Dylan Sheehan and his sister. She gave the following evidence:

“Q.   Did Dylan expand on what he had told you earlier?

A.   Yeah, he did. He said there were two people in the loo and mean because obviously when he first told me, I think he was just in shock. And I was obviously trying to get up and out, speak to the security guards about it and get like a hold on the situation.”

54. Ms Feuw gave evidence that she was advised that police would not be coming and she sent Dylan and his sister home and closed the bar. She then gave the following evidence:

“Q.   The second conversation you had with Dylan after you returned from upstairs, apart from him telling you that there were two people that attacked him in the bathroom, did he say why they had done that or how the situation in the bathroom had transpired?

A.   I believe a joke had been made possibly about two people in the loo together.”

55. In cross-examination, Ms Feuw confirmed that when he first approached the bar, the complainant said he was assaulted by a big Pacific Islander male. At that time, she understood it to be just one person.

56. Ms Feuw gave the following evidence:

“Q.   Is it the case that the first time Dylan tells you there were two people involved in this assault was when he came back into the premises after leaving, is that right?

A.   When I came back into the premise after leaving, yes, and he was with his sister as well so I was talking to both of them about it, yep.”

The case for the accused – evidence of Kerry Foley

57. The appellant gave evidence that his date of birth was 9 December 1987. On 24 November 2019 he arrived at the Old Boatshed at Manly at around 11pm with the co-accused and another mate. They got a beer and went to the dancefloor and after a while he told the co-accused that he was going to the bathroom to “do a line”, meaning a line of cocaine. He and the co-accused then went into the bathroom and into the first cubicle closest to the door. He gave evidence that he shut the door behind him, leaned up against the door and locked the door.

58. The appellant gave evidence that he put some cocaine on his phone and he and the co-accused were talking. He gave evidence that he “did a line” and then a little while later heard someone yell out “Oh, give us a bump”. He understood that to mean “give us a line of coke”.

59. The appellant gave evidence that he could see someone through the cracks of the door. He told him to “fuck off” and kept chatting to the co-accused. After five or ten seconds, he gave evidence that he heard a person outside saying “I know what you’re doing in there”, to which he replied, “I don’t fucking care”. He then gave the following evidence:

“Q.   Then what happened?

A.   Then I just – I just fill the toilet door swing open and hit me on my shoulder because I’m standing back with my leg against the door to stop it opening.

Q.   So the door just opened?

A.   The door just swung open.

Q.   Wasn’t it locked?

A.   Well it was locked but obviously he – I don’t know, he pushed it, barged it in, or did whatever. It wasn’t just a gentle nudge.

Q.   It opened?

A.   It swung open and hit me.

Q.   When you say hit you, where did it connect with your body?

A.   Just on my right shoulder

…

Q.   So after the door opened and hit your right shoulder, what’s the next thing that happens?

A.   Ian just kind of just – kind of said “what the fuck?” and then started walking out of the toilet.

…

Q.   As soon as you’ve seen him and Ian is walking out and you’re behind Ian, what’s the next thing that happens?

A.   I see – I see the male throw a punch at Ian.

…

Q.   Did the punch connect?

A.   I, I don’t recall if it connected or not.

Q.   After you saw that punch being thrown, what happened next?

A.   Ian’s kind of crash tackled him.”

60. The appellant gave evidence that both the men landed on the floor with the co-accused on top of the complainant and they were both throwing punches at each other.

61. The appellant was then asked the following leading question:

“Q.   How long had passed before you grabbed Ian?

A.   I wouldn’t be able to tell you mate, it’s, it’s – it all happened so quickly, so I can’t give you like exact time, but it was – it was – it was long enough for someone to, you know, for them to be in a scrap together to do some damages for sure.

Q.   So then what did you do to Ian?

A.   I grabbed him by like the back, by the shirt.

Q.   What do you mean ‘the back’?

A.   By the back of the shirt.

Q.   Back of the shirt?

A.   Yep.

Q.   Did you use one hand? Two hands?

A.   I don’t really remember but I’m guessing two because he’s very big boy so I would need two.

Q.   When you grabbed Ian, was anything being said by anyone at this point?

A.   Not that I can recall mate, it’s – it was a fight at the time. It was like, turned into like a scrap so, you don’t really remember –

Q.   Did you say anything to Ian?

A.   I said to Ian, I was like – I just told him, I told him to come on, let’s go, let’s go.”

62. The appellant gave evidence that it took a little while for the co-accused to get up. He then gave the following evidence:

“Q.    Once Ian was on his feet, what happened next?

A.   I pulled him up. I went to run out.

Q.   Run out where?

A.   So I just – I walked out to try to exit because I told him to leave.

Q.   You left the bathroom?

A.   I left the bathroom. And then Ian wasn’t behind me so I’ve come back in. I’ve come back in and then I’ve seen them both standing in the middle of the, I guess the toilet, facing each other.”

63. The appellant proceeded to give evidence that at this time, he saw the complainant throw another punch at the co-accused, which he described as “a big loopy right hand”. He didn’t see it connect. After that, the co-accused “kind of footy tackled him this time”. When he did that, they fell into cubicle number two. The appellant again told the co-accused to “come on, let’s go”. He then gave evidence that he grabbed the co-accused again, as follows:

“Q.   Where did you grab Ian?

A.   I would have grabbed him around the shirt at the start and this time he was bending over. He was like in a very strong position, so he wasn’t moving. So I’ve grabbed – I’ve jumped up and grabbed top of his head and pulled him around the neck.

…

Q.   How did you do that?

A.   Like aggressively, I just yanked him, pulled him back.”

64. The appellant described putting the co-accused in a headlock and saying again to him “come on let’s go, let’s go.”

65. The appellant gave the following evidence:

“Q.   Then what?

A.   I’ve turned around and walked out. I went to – I went to walk off and I guess after a bit of time realised he wasn’t with me, so I’ve come back in and then seen him and just said, “mate, let’s go” and then he – pretty much grabbed him and then he’s – we’ve exited together.

Q.   When you exited, did you see where the other male was?

A.   No, like he was still in like cubicle, he was just kind of sitting there. I was, I didn’t pay him – I didn’t pay much attention to be honest.

…

Q.   But you and Ian eventually leave the toilets?

A.   Mm-hmm.

Q.   What happens next?

A.   Ian kind of got I think ushered out by the security or he went up the stairs. And then I looked down and realised my hand was bleeding so I went up to the bar to get a napkin.”

66. The appellant gave evidence that he was bleeding on his left hand on his knuckle. He was asked:

“Q.   How did your hand start bleeding?

A.   Just some scabs ripped off during the – during the scuffle I guess.”

67. The appellant gave evidence that the scabs on his left hand were from training as a professional boxer.

68. The appellant gave evidence that a short time later he was approached in the bar by a female who was screaming at him, and said, “You just bashed my brother.” He replied, “No, I didn’t. I didn’t fucking touch your brother.” He then said that if anything, he was helping him.

69. The appellant gave evidence that they were separated by security. He stayed for a couple of minutes and then walked upstairs where he saw one of the people he came into the premises with. His name was Jez. He asked that person, “Where’s Ian?” and was told that he had left, but that he had lost his phone. He gave the following evidence:

“Q.   What happened next?

A.   I said, ‘Well I’ll check down in the toilets, he got into a scrap down there, I’ll go down and check’. So I just walked down to the toilet, looked on the floor, saw a phone.

Q.   Do you remember where the phone was in the toilet?

A.   Just in the middle where the blood was.”

70. The appellant gave evidence that he thought the phone was the co-accused’s phone. He gave further evidence that the allegation made against him was not true and that he did not touch the male in the bathroom at all during the incident.

71. The appellant was cross-examined extensively about what happened in the bathroom. He agreed he had invited the co-accused in there to do a line of cocaine.

72. The appellant was cross-examined extensively about what occurred after he left the bathroom. He gave evidence that he observed a conversation take place between the co-accused and a security person. He then gave the following evidence:

“Q.   Because you were worried, weren’t you, that you were going to be asked to leave?

A.   No, not at all.

Q.   Didn’t worry you about what had just occurred in the bathroom?

A.   No.

Q.   Didn’t faze you?

A.   No.

Q.   There was somebody injured and bleeding in the bathroom?

A.   No, I didn’t think about it like that.

Q.   What did you think about?

A.   That he was the one who started it. So it didn’t even cross my mind.”

73. He confirmed his evidence that the complainant, Mr Sheehan, had started the whole altercation and that the co-accused had done nothing at all but defend himself. He gave the following evidence:

“Q.   You didn’t bother to say to security, ‘hang on, he’s the victim here, he was just defending himself’?

A.   No, I didn’t.

Q.   Because that’s not how it happened, is it?

A.   No, it’s – I just didn’t think of it like that.”

74. The appellant gave evidence that the complainant’s sister was aggressive towards him and adhered to that evidence. When the Crown case was put to him, he disagreed with it and denied that he punched Mr Sheehan two or three times. He also gave evidence that it was incorrect that he didn’t approach management or security because he knew that both he and the co-accused were the aggressors in the bathroom.

The CCTV evidence

75. The CCTV compilation evidence was played in court, and a timeline was marked for identification as MFI#1 on the appeal. It comprised 20 separate items between 23:32:55 hours and 23:48:24 hours, namely, from just before the three men walked into the bathroom to the appellant leaving the premises. The compilation video ran for approximately eighteen and a half minutes and was marked Exhibit B on the appeal.

The appellant’s submissions

76. The appellant relied on a thorough and detailed written outline of submissions, cross-referencing the transcript of evidence in the Local Court proceedings. The appellant submitted that the issue on the appeal was whether an unlawful participation by the appellant could be proved beyond reasonable doubt in the assault of the complainant, Mr Sheehan. The appellant submitted it cannot, as it cannot be proved beyond reasonable doubt that the appellant “was not acting only to stop the altercation”.

77. In determining that matter, the court was asked to give itself the following directions:

1. A Murray direction;

2. A Liberato direction (as reformulated by De Silva); and

3. A Mahmood direction for evidence not obtained in the investigations.

78. The written submissions then outlined an analysis of the evidence in the Local Court. The appellant submitted that at the time the complainant claims he was punched by the appellant, “it is hard to find how any weight can be placed on who struck him at that point in time, when he accepts himself he was struggling to ‘comprehend what was happening’.”

79. It was submitted that at that point in time the complainant “could easily have mistaken the appellant for the co-accused.” It was submitted great caution should be taken in accepting the complainant’s evidence at that crucial point in time “as he could easily have been mistaken and certainly could not be said to have reliable recall after he was first struck.”

80. It was submitted that the evidence of the complainant that he was celebrating his birthday and that he has “quite a high tolerance to alcohol” was suggestive that he may have consumed more alcohol than he recalled.

81. The appellant submitted that the inconsistency between his evidence and police statement as to whether the cubicle door was shut or open raised doubt about “the credibility of his motive to try and open the cubicle door and the accuracy of his recall of events”.

82. It was submitted that a second inconsistency arose as to whether, at the time of the assault, he was in the second cubicle or whether he was half-in or not in it at all.

83. It was further submitted that at the time he was struck, he was looking at the appellant through his peripheral vision diagonally to his left and his main focus was on the co-accused. The complainant had given evidence that at that time, he was “disorientated extremely”.

84. The appellant submitted that the extensive cross-examination of the complainant on “the clear inconsistency between the CCTV showing him enter the toilet room almost immediately behind the appellant and co-accused” was telling, in that he was either not telling the truth (or the entire truth) or he simply did not have a reliable recollection of the events at all. It was submitted that it had “become apparent to him that it is improbable he did not know there were two people already in the toilet cubicle, as he walked into the toilet room behind two men.”

85. It was submitted on viewing the CCTV evidence that it was simply improbable that:

“ •   The complainant did not see the two co-accused enter the toilet cubicle and close the door behind them;

•   The complainant did not hear, see or perceive the two co-accused in the only cubicle with a closed door;

•   The complainant did not choose to enter the only other free cubicle (the only one of two with it’s door open) or use the urinal.”

86. Accepting that the above was improbable, it was submitted that the CCTV footage alone creates a large amount of doubt on what weight can be given to the reliability of the complainant’s evidence and his credibility.

87. The appellant submitted that the evidence of other witnesses after what occurred in the toilet were based on a false or mistaken assertion by the complainant that he was in a physical altercation with two men instead of one.

88. It was submitted that the complainant’s sister, Hayley Sheehan, had confronted the appellant about assaulting her brother, to which he “mostly tried to say that he didn’t” and that he had been trying to help her brother. The evidence of Katie Milton, the complainant’s partner, was that when challenged about assaulting the complainant and the injury to his knuckles, the appellant had said “trust me, I’m a fighter and you don’t get cuts like this from punching someone” and he denied the allegations.

89. It was submitted that the evidence of Remy Vouskila as to how the assault occurred was consistent with the appellant’s version.

90. The appellant also submitted that the evidence of Eloise Feuw, the bar manager, was that the complainant at first said to her that he was attacked in the toilet by “a big Islander guy”. He only mentioned the second man to her later.

91. In relation to the appellant’s own evidence, it was submitted that he had given evidence against his own interest and honestly admitted that he had consumed both alcohol and cocaine prior to the incident. The written submissions paraphrased the evidence given by the appellant, and it was submitted that his evidence was unshaken after extensive and vigorous cross-examination.

92. It was submitted that the evidence in the Crown case was not sufficient to prove beyond a reasonable doubt that the appellant in any way participated in any unlawful assault on the complainant. Even putting the appellant’s evidence to one side, it was submitted the evidence of the complaint was lacking credibility and was unreliable due to the important inconsistencies outlined in the written submissions. The appellant submitted that it was not probable that the complainant did not know that the two men were in the cubicle and further, it was submitted that the evidence suggests that the complainant could easily have been mistaken as to who struck him and it could equally have been the co-accused.

93. It was submitted that the appellant did not immediately leave the premises, and that he explained his actions when challenged. Further, afterwards at the Dee Why RSL, he had stopped the co-accused having a similar altercation with another person, all of which was submitted was not consistent with either a guilty mind or guilty actions in relation to any assault.

94. In his oral submissions, the solicitor for the appellant rehearsed his submission that the issue on appeal is if the Crown case can be proved beyond reasonable doubt. It was submitted that it could not be if it was established that the appellant only tried to intervene to stop the assault.

95. It was acknowledged that the appellant had given evidence against interest concerning his consumption of alcohol and cocaine and notwithstanding that he may have come across as being non-caring about the complainant, what occurred was an incident in a very small bathroom and the complainant was either lying or was mistaken as to whether the appellant assaulted him.

96. It was submitted that, having regard to the totality of the evidence, what occurred was a short succinct violent altercation, during which the complainant became disoriented during what was described as a “flurry of assaults”.

97. The appellant’s solicitor rehearsed his submissions as to the inconsistencies in the complainant’s evidence. First, given his proximity to the two men when they entered the bathroom, it was submitted he should have known that the two men were already in the toilet cubicle. He rhetorically asked, “Why approach that cubicle?”. If the court was in any doubt, it was submitted that undermines the rest of the complainant’s evidence.

98. Secondly, the complainant on his own evidence became disoriented and affected by the initial blow from the co-accused. The court, in the circumstances, would be careful as to what weight was attributed to the evidence of the complainant that the appellant struck him. It was submitted that the complainant was either not telling the truth or was acting on a mistaken belief. The findings made by the learned magistrate as to the credit of the complainant does not, it was submitted, undermine that mistaken belief. Given that there were three males in a very small place, it was submitted that the complainant could have easily been mistaken, and this would create doubt as to who struck him.

99. The appellant also relied on the evidence of what the appellant did after he left the bathroom. It was consistent with the appellant not assaulting the complainant but trying to stop the co-accused from assaulting him. Consistent with that, the appellant did not flee the premises like the co-accused. Not only that, but once he had left the premises, he went back in, having been informed that the co-accused had lost his phone. He did not know that the phone he found in the bathroom was the complainant’s phone.

100. The solicitor for the appellant rehearsed his submissions that the evidence of the complainant’s consumption of alcohol, namely five beers during the night, also goes to his reliability. The evidence given by the complainant that the door to the cubicle was slightly open was very important. It was consistent with the appellant’s evidence that the complainant had approached and knocked on the door. His evidence that he had assumed that the two men were doing drugs was not consistent, but was consistent with the appellant’s evidence.

101. The solicitor for the appellant also rehearsed his submissions as to the complainant being disoriented, unbalanced and lacking co-ordination. Further, his evidence that he was not aware of the two men in the bathroom was completely inconsistent with the CCTV footage. The appellant rehearsed his submission as to the mistaken belief of the complainant as to what occurred.

102. It was submitted that the court would accept the appellant’s evidence of how he suffered the injury to the back of his hand, namely, that pre-existing scabs were ripped off his knuckles during the scuffle. It was submitted that the appellant did not embellish what occurred, for example, the second time he encouraged the co-accused to leave he gave evidence that he grabbed the top of his head and pulled him around the neck. It was physically possible in those circumstances for the scabs to be removed, and the court would not discount his version of the event. He asked rhetorically, “if the appellant was making up his evidence, why would he not make up a clear and distinct act to exculpate himself?”.

103. It was submitted the fact that the appellant did not leave the premises straight away gave rise to an inference inconsistent with the complainant’s evidence that he was assaulted by the appellant. Further, when he did leave, he came back into the premises to look for the accused’s phone in the bathroom. It was submitted this was important evidence which was completely inconsistent with him having just assaulted the complainant.

104. The appellant’s solicitor also rehearsed his submissions concerning the evidence of the other witnesses, in particular, Hayley Sheehan and Katie Milton. It was submitted that the complainant may have believed he was attacked by both men, when in fact he was attacked by one only. The complainant had first told Ms Feuw that he had been attacked in the bathroom “by a big Islander”.

105. During his oral submissions, solicitor for the appellant tendered a still photograph taken from the compilation of CCTV footage showing the appellant re-entering the premises at 23:49:54 hours. It became Exhibit C.

106. The appellant’s solicitor rehearsed his submission that the post-incident conduct of the appellant was not aggressive or violent and this reflected on his “frame of mind” on the evening. Similarly, the fact that one hour later, he did not engage in another incident other than to stop the co-accused, reflected on his state of mind.

107. It was submitted on behalf of the appellant that even accepting the learned magistrate’s adverse findings of credit, having rejected the appellant’s evidence, that left only the evidence of the complainant, which could not be regarded as reliable. It was submitted that the complainant could have reconstructed portions of his evidence. This gave rise to a reasonable doubt as to what occurred in a very short space of time in a confined area in the bathroom.

The Crown’s submissions

108. The Crown also relied on a detailed outline of written submissions, in which it set out a summary of the facts. The Crown agreed that the issue on appeal is whether the Crown can prove beyond a reasonable doubt that the appellant’s participation in the altercation with the complainant was unlawful.

109. The Crown summarised the complainant’s evidence-in-chief, including his evidence that he was struck by the appellant between two and three times.

108. The Crown also summarised the cross-examination of the complainant, in which he rejected the following propositions:

• That he knew what the appellant and Tapaatoutai were doing, from the moment he walked into the bathroom.

• That the cubicle door was locked.

• That he said the words “oi, give us a bump”.

• That after being told to “fuck off” he replied, “I know what you’re doing in there”.

• That he threw a punch towards Tapaatoutai’s head and that in response, Tapaatoutai tackled him to the ground.

• That the appellant grabbed Tapaatoutai from behind and pulled him off from the complainant.

• That after the appellant returned to the bathroom, the complainant threw a punch at Tapaatoutai which missed.

• That there was no conversation about the phone in his presence.

• That he was omitting the event of attempting to obtain drugs from the accused and co-accused, that he was the aggressor during the altercation, that the appellant never touched him and that the appellant was trying to pull the co-accused away from him.

111. The Crown also set out a summary of the evidence of the appellant as summarised by me above.

112. The Crown set out the relevant findings of the learned magistrate, including her finding that the complainant was an honest and reliable witness. The learned magistrate also found that whether the cubicle door was open or closed was of little consequence, as was the question of whether the accused was in cubicle two or entering cubicle two when the altercation occurred. Similarly, the evidence of Mr Vouskila that the complainant told him that he was on his back in the bathroom, did not necessarily impugn the credit of the complainant. The learned magistrate found that all of the inconsistencies, even taken as a whole, were not sufficient to raise a doubt as to the reliability and honesty of the complainant.

113. The learned magistrate further found that the appellant was an unimpressive witness and that she had concerns about the reliability of his evidence. Examples of that were that he gave evidence that he had a clear view of what occurred, despite the smallness of the bathroom and the fact that the co-accused left the cubicle first, meaning the appellant was behind him. The learned magistrate also found his evidence about taking the complainant’s phone to be unimpressive. The appellant’s evidence that the complainant’s sister, Hayley Sheehan, had grabbed him “everywhere” was also unreliable.

114. The Crown set out the relevant legal principles referred to in McNab (supra). It was submitted that the appellant’s account of the events in the toilet should not be accepted because:

“a.   The appellant could not explain why, despite purportedly being subject to an unprovoked assault by the complainant, he did not inform staff at the Old Boatshed about this fact and simply returned to socialising after the fact;

b.   The appellant’s account suggests that the scabs on his knuckles were re-opened by him grabbing Tapaatoutai’s shirt and putting Tapaatoutai in a headlock. This explanation is not reasonable;

c.   The appellant maintained that the cubicle door was locked and that the complainant had opened the door nonetheless. The appellant accepted that the lock would have to be broken in order for this to occur, however there was no evidence of the lock having been broken.”

115. The Crown conceded that a Mahmood direction was appropriate with respect to the lack of a forensic investigation of the bathroom. Notwithstanding that, the Crown submitted that the court would reject the evidence of the appellant that the cubicle was locked.

116. In response to the appellant’s submissions, the Crown submitted that it was entirely reasonable that the complainant did not notice the accused and co-accused enter the bathroom. The CCTV evidence was clear that he was looking elsewhere as he approached the bathroom.

117. In response to the post-incident conduct of the appellant stopping a fight between the co-accused and others at another venue, the Crown submitted there was no evidence that suggests whether the appellant was provoked in any way at that venue. At the Boatshed, the appellant was actually interrupted whilst ingesting cocaine, which distinguished the event.

118. The Crown submitted the court would take into account the credibility findings made by the learned magistrate, noting the advantage that the magistrate had in assessing the witnesses’ demeanour. The Crown submitted that the court would be satisfied that the elements of the offence had been made out beyond reasonable doubt and dismiss the appeal.

119. In his oral submissions, the Crown rehearsed his written submissions that the court would not accept the appellant’s version of events, namely, that the complainant was the aggressor who had demanded drugs from the two men and had thrown the first punch. The Crown characterised this as a “bizarre version of events”.

120. The Crown referred to the appellant’s submission that the complainant was not only the aggressor but also his female friend was the aggressor in her interaction with the appellant.

121. The Crown rehearsed its submission that the appellant did not report any assault by the complainant to the bar staff. Referring to the diagram in Exhibit 2, given the dimensions of the bathroom, the Crown submitted it was perfectly reasonable that the complainant did not see anyone in the first cubicle as he entered.

122. The Crown submitted that the CCTV footage of the appellant returning to the bathroom does not defeat the complainant’s claim that his phone was stolen during the incident. The evidence was neutral on that issue. As to the post-event conduct of the appellant within the premises, the Crown submitted that the CCTV footage clearly showed security present, separating the two groups.

Determination

123. In determining this matter, I am mindful of and give myself the following directions of law.

Murray direction

124. Wherever the Crown seeks to establish the guilt of an accused person with a case based largely or exclusively on a single witness, it is important that a jury or the judge of the facts is told that it should exercise caution.

That is what I am going to tell myself now.

I must exercise caution before I convict the accused because the Crown case largely depends on me accepting the reliability of the evidence of a single witness.

This being so, unless I am satisfied beyond reasonable doubt that the complainant, Dylan Sheehan, is both an honest and accurate witness in the account he has given, I cannot find the accused guilty. Before I can convict the accused, I should examine the evidence of the complainant very carefully in order to satisfy myself that I can safely act upon that evidence to the high standard required in a criminal trial.

That caution is not based upon any personal view that I have of the complainant and I would not express my personal opinions on the evidence. But in any criminal trial, where the Crown case relies solely or substantially upon the evidence of a single witness, a judge of the facts must always approach that evidence with particular caution because of the onus and standard of proof placed upon the Crown.

I am not suggesting that I am not entitled to convict the accused upon the evidence of the complainant. Clearly I am entitled to do so but only after I have carefully examined the evidence and satisfied myself that it is reliable beyond reasonable doubt.

In considering the complainant’s evidence and whether it does satisfy me of the accused’s guilt, I should of course look to see if it is supported by other evidence.

Liberato direction

125. The accused relies on an account of events in the evidence he gave. That account is to the effect that he did not assault the complainant in the bathroom, but rather was attempting to stop the co-accused from assaulting the complainant.

It is important I understand that the accused must be found not guilty if his guilt has not been proved beyond reasonable doubt and that he is entitled to the benefit of any reasonable doubt I may have at the end of my deliberations.

It follows from this:

First, if I believe the accused’s evidence, obviously I must acquit.

Second, if I have some difficulty accepting the accused’s evidence, but think it might be true, then I must acquit.

Third, if I do not believe the accused’s evidence, then I should put it to one side. Nevertheless, the question will remain; has the Crown, upon the basis of evidence that I do accept, proved the accused’s guilt beyond reasonable doubt?

The onus remains on the Crown to establish beyond reasonable doubt the charge which it brings against the accused, and there is no onus on the accused to prove that he is not guilty.

Mahmood direction

126. No forensic examination took place by police of the premises or the bathroom where the alleged assault took place. I can take the fact that there was no evidence from any police witness about this into account when I decide whether the Crown has proved the guilt of the accused.

I am not being invited to guess what would have been said if such evidence had been called. I must not do that at all. In a criminal trial, where the Crown must prove that the accused is guilty beyond reasonable doubt, a judge of the facts is entitled to take into account that there is no evidence from a particular person in deciding whether or not there is a reasonable doubt about the accused’s guilt.

Assessment of witnesses

127. Having read the transcript of evidence and viewed closely the CCTV evidence of what occurred in the premises, I am mindful that the learned magistrate had the benefit of seeing the witnesses and I accept the Crown submission that I would take into account the credibility findings made by the learned magistrate with respect to the complainant and the appellant, noting the advantage that the learned magistrate had in assessing their demeanour. Having carefully scrutinised his evidence, I find that the evidence given by the complainant was both honest and reliable.

128. The focus of the appellant’s submissions in relation to the complainant’s evidence were the inconsistencies as outlined above, namely, in relation to whether he knew that the accused and co-accused were both in the bathroom having entered immediately before him, whether he knew they were in the cubicle, whether the cubicle door was open, whether he was the aggressor in the incident and whether he threw the first punch at the co-accused. The learned magistrate was correct in finding that any inconsistency in respect of the first three matters were peripheral, and in rejecting the last two.

129. Having regards to the directions that I have given myself about the evidence, I have carefully reviewed both the transcript and the CCTV evidence. The CCTV evidence does not, of course, depict the alleged assault, nor does it have audio and care must be taken in drawing inferences from it.

130. In looking at the totality of the evidence, I have had regard to both the complaint evidence of Ms Sheehan and Ms Milton, in which they identify that the complainant described being assaulted by both the co-accused and the accused, notwithstanding the evidence of Ms Feuw that the complainant told her he had been assaulted by the co-accused only. The evidence of the bar staff and Ms Feuw, the manager are important, as is the entry in the incident log and incident report made contemporaneously with the report of the assault by the complainant, namely, that he was assaulted by two people in the bathroom.

131. I find that the inconsistencies relied upon by the appellant, which he submits give rise to reasonable doubt, relate to peripheral matters and both individually and collectively, consistent with the learned magistrate’s finding, did not give rise to a reasonable doubt in this case. Further, the post-incident conduct of the appellant in remaining in the premises for a short time does not indicate a lack of consciousness of guilt, notwithstanding that the co-accused left immediately, once he was identified by security as one of the assailants. Further, the appellant’s explanation as to a bleeding of the knuckles on his left hand, is somewhat implausible, in that he gave no explanation as to how that occurred other than his version that he was involved in pulling the co-accused from or off the complainant. At no stage did he give an explanation as to when the injury to his knuckles occurred and by what process. Rather than create doubt, that injury lends credence to the complainant’s evidence that he was struck two or three times by the appellant.

132. Having rejected the evidence of the appellant, I have therefore put it to one side. Taking into account the evidence of the complainant, the evidence of complaint to the bartender and manager, the complainant’s sister and Ms Milton, the evidence of the incident log and incident report, together with the evidence of the appellant wiping blood from his knuckles, I am satisfied that the Crown has established the elements of the offence beyond reasonable doubt and that there is no alternative hypothesis consistent with the appellant’s innocence.

133. For these reasons, I find that the offence is established and I therefore dismiss the appeal.

Order

134. I hereby make the following orders:

1. The appeal is dismissed.

2. I confirm the conviction of the appellant and the order made by the Local Court on 13 May 2021.

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Decision last updated: 22 April 2022