Jones v Graham
[2020] ACTMC 15
•9 June 2020
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jones v Graham |
Citation: | [2020] ACTMC 15 |
Hearing Date(s): | 7 March 2019 and 3 July 2019 |
DecisionDate: | 9 June 2020 |
Before: | Special Magistrate Hunter OAM |
Decision: | See [173]-[216] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – motor vehicle – assault – Directions Judge alone Trial, R v Clearihan |
Legislation Cited: | Road Transport (General) Act 1999 s 72, s 60 |
Cases Cited: | R v DM [2010] ACTSC 137 R V Mulcahy [2010] ACTSC 98 R v Burdon [2011] ACTSC 90 Parkinson v Alexander [2017] ACTSC 201 R v Clearihan [2002] ACTSC 60 R v Murray (1987) 11 NSWLR 12 |
Parties: | W J Jones (Informant) Ross Graham (Defendant) |
Representation: | Counsel B Ngugi (Informant) T Sharman (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Informant) Sharman Robertson Solicitors (Defendant) | |
File Number(s): | CC 18/1578 CC 18/1579 CC 18/5189 CC 18/5181 CC 18/6592 |
SPECIAL MAGISTRATE HUNTER OAM:
The Defendant, Ross Graham was charged with five offences.
(a) CC 2018/6592 – obstructing a driver – to which a plea of guilty was entered.
(b) CC 2018/5178 – common assault – plea of not guilty entered
(c) CC 2018/5179 – common assault – plea of not guilty entered
(d) CC 2018/5181 – damage property – plea of not guilty entered
(e) CC 2018/5180 – assault occasioning actual bodily harm – plea of not guilty entered
These offences were said to have occurred on 13 December 2017 at Fowles St Weston.
I heard this matter over two days being 7 March 2019 and 3 July 2019.
I received the following evidence;
Statement of Warren Jones Constable of Police-Summary of his Evidence
Constable Jones attended the front desk of Woden Police station and spoke to Mr Ari Lyras (‘Mr Lyras’). Mr Lyras complained that he had been assaulted following a road rage incident on 13 December 2017. Mr Lyras, told him, that the Defendant parked his vehicle across the road impeding his travel. As this happened, Mr Lyras commenced videoing as he was concerned for his safety. Words were exchanged between the pair and the Defendant struck him to the head several times and hit his vehicle causing a small dent. Mr Lyras said that the last hit to the head rendered him unconscious.
Constable Jones took photos of the injuries sustained, placing them on a CD. Constable Jones received information that Mr Lyras attended Calvary Hospital as a result of the altercation. Constable Jones also copied the video of the incident recorded on the Complainant’s mobile phone.
Constable Jones attended the Defendant’s father’s home and spoke with him. Mr Graham provided a phone for the Defendant. Mr Graham Senior said he had witnessed part of the altercation.
Constable Jones received the 000 call and had it entered onto a CD and later transcribed.
Constable Jones spoke to the Defendant on 17 March 2018. The Defendant was offered to participate in an interview but declined. At the time the Defendants brother Ian said he had witnessed part of the incident but did not want to give a statement. The Defendant admitted to Constable Jones that he was the driver of the Toyota at the time of the incident. A section 60 request was tendered in evidence.
Maps
I received in evidence a map of the area said to be where the Defendant cut off Mr Lyras as well as a map showing the area of travel from the Parkway to Fowles St Weston.
000 Transcript and CD of call
Summary of Call
Mr Lyras told the 000 operator that he had been set upon by the Defendant because the Defendant thought Mr Lyras was following him. That the Defendant parked his vehicle in the street blocking his passage so he could not go up the street further, that he told the Defendant that he was going two houses up, that the Defendant hit him in the back of the head, that he knocked him out and pushed him to the ground and that he was also kicked by the Defendant. That he felt in shock when speaking to the operator.
Photographs of Mr Lyras, showing bruising on shoulder, arm and back of neck and head where he said he was hit.
Photographs of injuries to little finger and knee
Photograph of the vehicle in Fowles Street taken by the Defendant
Video of Incident – played
Damage repair quote
Prosecution Opening
The prosecutor alleged that:
(a) Charge 2018/5178 – common assault – was particularised as the Defendant hitting the complainant to the shoulder with his fist.
(b) Charge 2018/ 5178 - common assault was particularised as the Defendant striking the complainant to the head behind his right ear.
(c) Charge 2018/5181 – damaging property was particularised as the Defendant punching the door seal of the complainant door causing damage.
(d) Charge 2018/5180 – assault occasioning actual bodily harm was particularised as the Defendant punching the complainant to the right side of his head causing him to fall to the ground losing consciousness and suffering abrasions to his knee, little finger and right calf. The actual bodily harm are the abrasions.
The prosecutor alleged that Mr Lyras was driving his vehicle from the off-ramp of the Tuggeranong Parkway when he encountered a vehicle driven by the Defendant. It was alleged that the Defendant cut off Mr Lyras, although the Defendant said it was Mr Lyras who cut him off.
It was the Defendant’s view that Mr Lyras was following him to his home. It turned out that Mr Lyras was attending a meeting on the same street as the Defendant lived.
As the Defendant arrived at his driveway, he stopped his vehicle on the road which blocked the passage of Mr Lyras to get to the meeting address. The Defendant got out of his vehicle and confronted Mr Lyras. Mr Lyras videoed the Defendant’s actions. Mr Lyras told the Defendant that he was going to 23 Fowles Street Weston ACT (‘No. 23’).
Mr Lyras alleged that despite telling the Defendant that he was going to No. 23, a number of times, the Defendant punched him to the left shoulder then the right side of his head/neck. Mr Lyras told him that he was recording the altercation and the Defendant tried to hit the phone out of his hand.
Mr Lyras said that the Defendant “went to kick his car, wearing steel cap boots”. Mr Lyras warned him not to kick his car and the Defendant threatened to hit and kick him and told Mr Lyras to get into his car.
Mr Lyras said he told the Defendant that he cut him off. Then two males came out yelling. The complainant was trying to get back in the car when the Defendant hit Mr Lyras in the back of the head and he fell to the ground.
Mr Lyras said he was very dazed, tried to get his balance after the hit and then was looking for his phone in the gutter. The Defendant got in his vehicle and moved it into his home address in Fowles Street. That allowed the complainant and another person a Mr Leitch to drive their cars to No. 23.
Mr Lyras called 000 asking for police attendance but the police did not attend, so he went to the meeting.
Mr Lyras attended Calvary for medical assistance later. Photographs of injuries sustained were taken later at Woden Police station.
Defence Opening
Defence counsel confirmed the plea of guilty in relation to CC 2018/6592. In respect to charge 2018/5178, the Defendant denied punching Mr Lyras but said that he did push him. Defence counsel submitted that the Defendant assumed that Mr Lyras was following him home and made a call to his brother and father advising of this fact.
The Defendant conceded that he engaged in a verbal altercation using colourful language and was aggressive towards the complainant. The Defendant conceded that he pushed Mr Lyras but denied striking him at all. The Defendant further denies damaging Mr Lyras’s vehicle.
Evidence of Mr Lyras
Mr Lyras gave evidence that he was on his way to a body corporate meeting at No. 23. As he exited from the Tuggeranong Expressway onto Hindmarsh Drive, he indicated there was a vehicle in front of him and one behind him at the lights. There was no vehicle to his left. As the lights changed and the vehicle in front slowly took off, he saw in his rear vision mirror a bull bar very close behind, and he proceeded to take off, and as he came around the bend the vehicle with the bull bar who had been tailgating him, overtook him and as he got around the corner that vehicle cut him off. Mr Lyras said he did not get angry or give the finger because he wanted to get to his meeting. The vehicle who had cut him off sped off in front of him and he observed it turning into McInnes Street where he also needed to turn into. When the lights turned green, he proceeded into McInnes Street following the vehicle. Both vehicles turned into Buvelot Street and then into Fowles Street.
Mr Lyras did not think anything of it, however, noticed that the vehicle began to slow and given the circumstances, Mr Lyras pulled out his mobile phone to video the vehicle because he had blocked the road.
Mr Lyras put his vehicle in park and observed the Defendant get out of his car, approaching with clenched fists and appeared very angry as he headed towards him. Mr Lyras said he opened the car door and told the male that he was going on to No. 23 when the male who we now know to be the Defendant, approached him yelling at him “why are you following me”.[1] Mr Lyras told the Defendant that he was filming him, and he then hit him to the right side of his head-neck area, behind the ear, and was trying to take his phone from him, by hitting it out of his hand. Mr Lyras then put the mobile in his pocket.
[1] Transcript 7 March 2019, 19.
The Defendant then attempted to kick his vehicle and told Mr Lyras to get into his car. Mr Lyras said he felt scared and stepped away and the Defendant slammed his door extremely hard. The Defendant threatened to kick his vehicle with his steel cap boots on but did not do so, however, clenched his fists and punched the top of the door telling Mr Lyras to get into the car. An argument ensued about who cut who off, and then two men, an older one and a younger one, came out and were yelling. They told Mr Lyras to get into his car. Mr Lyras was trying to get into his car when the Defendant hit him in the back of the head and knocked him down to the ground. Mr Lyras said “I remember getting myself up off the road, looking for my phone. It was, sort of, near the gutter, just really dazed, and I remember just trying to get my balance”.[2]
[2] Transcript 7 March 2019, 19.
Mr Lyras observed another vehicle coming into the street and saw that it was another committee member. Mr Lyras got into his vehicle and called 000, however, police did not attend. Mr Lyras attended the committee meeting. Mr Lyras said he was in shock.
Mr Lyras then indicated on the map the route that he had taken and where the incidents occurred. Mr Lyras circled the area where the incident took place in Fowles Street.
The recording made by Mr Lyras was played before the court. Mr Lyras identified the person speaking saying “you wanna, you wanna” as the Defendant and the person saying “I’m just going up the road [to] number 23” was himself. Mr Lyras indicated that the phone stopped when he fell to the ground.
In relation to why he did not get in the car when he was told to do so by the Defendant, he said it was obvious to him he was going to get hit if he got into the car and that’s exactly what happened. Mr Lyras said that afterwards he went to Calvary Hospital and received some treatment. He took photographs of the injuries sustained. These were exhibited as P2.
Mr Lyras said that he did not have those injuries prior to leaving home. They were caused by the Defendant.
Mr Lyras explained the photographs, as the bruising behind his ear was when he was punched, the second time, and the bruising to his shoulder was the first time. The grazing to his knee was when he hit the ground after being knocked out. Mr Lyras described it as he got hit from behind and sort of knocked unconscious and fell to the ground. It may have been for a couple of seconds he was not sure.
Mr Lyras further explained the video as the male, the Defendant, approaching very angry with his fists clenched heading towards him. The time and date were identified in the video. Mr Lyras said he took a screenshot of the image.
Mr Lyras, further explained that he got knocked out, and was unconscious, and said; “so in the end of the video the gentleman is asking me to get in my car so I proceeded to get into my vehicle and then the older gentleman started yelling get in your car. Get in your car, and I’ve turned toward the gentleman that was in the front of my car, the older gentleman who was on the curb around near the front left side of my vehicle, as I’ve turned to look at him that’s when I got hit from behind just before I was about to get into my vehicle.”[3]
[3] Transcript 7 March 2019, 32.
Mr Lyras further indicated that the only person standing close to him at that point was the Defendant.
Mr Lyras confirmed that the two men who came out did not assist in any way and in fact in his view aggravated the situation more.
Cross-Examination
It was suggested to Mr Lyras that he could not be 100% sure it was the Defendant’s vehicle behind him, and he agreed and said that all he saw was the bull bar. It was suggested to Mr Lyras that his evidence about there being lights at the Hindmarsh Drive - McInnis Street intersection was incorrect. Mr Lyras indicated that despite that factor there was no issue and he was behind the Defendant’s vehicle.
Mr Lyras denied being aggrieved by being cut off. Mr Lyras also denied being angry about it or gesticulating in his vehicle about being cut off. Mr Lyras indicated that when he turned into Fowles Street the Defendant was driving very slowly and was approximately 10 to 15 meters from him as he turned.
Mr Lyras agreed that the Defendant parked his vehicle partially obstructing the road. Mr Lyras agreed that he assumed the Defendant had come to the view that Mr Lyras was following him. Mr Lyras again denied being upset with the Defendant.
Mr Lyras agreed that the video footage does not show any of the actions of the Defendant striking him, nor does it show the Defendant damaging his vehicle. Further, it did not disclose any words to the effect of don’t hit me or you’ve hit me. It was at that point that I pointed out that there were some words saying something to that effect and that the video speaks for itself. (my emphasis)
Mr Lyras indicated that the two men who appeared would have seen the third striking but may not have seen the first two strikes.
It was indicated to Mr Lyras that the injury to his knee did not look as fresh as the injury to his finger. It was suggested to Mr Lyras that the injury to his knee had some scabbing on it.
Mr Lyras was asked whether he had a conversation with Mr Leitch and he said he could not as he was in a dazed state from being hit.
In respect to the 000 call, it was suggested to Mr Lyras that he was with somebody else at the time he made the call, he denied that and said that he did not recall that. He was asked questions in respect to what he told the 000 operator and again he had difficulty recalling or agreeing with what was said. Mr Lyras indicated that he had been struck in the head and had been dazed and was in shock. It was suggested to him that his use of the words ‘they’ and ‘we’ was untrue. Mr Lyras agreed that when he said ‘they’ dragged me out that were untrue because he got out of his own car. It was suggested that a number of things were wrong that he had said in the call. Mr Lyras indicated there were some minor things and that it was possibly because he was in shock about the whole incident.
It was put to Mr Lyras that he used essentially descriptors that were not exactly accurate. It was suggested to Mr Lyras that he was exaggerating the incident, he denied that saying he had just been hit in the head and was in shock with adrenaline pumping.
Mr Lyras identified the photograph as his vehicle and the Defendant, exhibited as D1.
Mr Lyras agreed that the Defendant had come past him when leaving the Tuggeranong Parkway on Hindmarsh Drive and overtook him. Mr Lyras denied that he got angry and was gesticulating and waving his hands. Mr Lyras denied driving closely behind the Defendants vehicle.
Mr Lyras denied that the Defendant came up to his vehicle and pushed him and said that he was hit. Mr Lyras indicated that the door was open, and he could not have pushed him and that he punched him. Mr Lyras denied that he was not punched or hit again. Mr Lyras said he did not make anything up. It was suggested to Mr Lyras that the injury to his knee was not fresh and had occurred sometime beforehand, Mr Lyras disagreed. It was suggested that the Defendant did not damage his vehicle which Mr Lyras denied.
In relation to the damage to the vehicle, Mr Lyras said that it was not a scratch it was a ripple which is a dent. Mr Lyras said he then identified the dent the next day as it was dark when he went to the police station.
In re-examination, with respect to the wound on his knee, Mr Lyras indicated that it was a fresh injury and there was blood still in the wound.
James Arthur Leitch
Mr Leitch indicated that he was driving to No. 23 when he came upon Mr Lyras’s vehicle which was on the road, not pulled off, but stopped as if driving on it.
Mr Leitch said that he observed a male standing in front of Mr Lyras’s car and two men on the left of the street. There was a white car parked on the left of the street. It appeared to him that their body language and stance was very strange”.[4] It appeared aggressive to him however he was unaware of what was happening or had just happened.[5]
[4] Transcript 7 March 2019, 78.
[5] Transcript 7 March 2019, 79.
Mr Leitch then said that he and Mr Lyras drove their vehicles to No. 23. Mr Leitch confirmed that the body corporate meeting was a prearranged meeting and that Mr Lyras was to attend.
Mr Leitch said that when they arrived at No. 23, they walked down the driveway and discussed when they arrived at the meeting what happened. Mr Leitch said that Mr Lyras had a little bit of blood on his ear.
Mr Leitch could not recall when it was that Mr Lyras made the call to police.
In cross-examination, Mr Leitch said that he did not give a statement to police until sometime after the event.
Mr Leitch said that he recalled seeing a bit of blood on the collar of Mr Lyras’s shirt. Mr Leitch was taken to his statement where it was suggested he said, “I observed Ari to be traumatised and shaken by the incident and had some blood on his shirt.”[6]
Robert Graham
[6] Transcript 7 March 2019, 82.
Mr Graham is the father of the Defendant and lives at 13 Fowles Street Weston. Mr Graham was taken to 13 December 2017, the day of the incident. Mr Graham said that he was out the back of his house when he heard noises of shouting and yelling and went out to see what was happening.
Mr Graham went to the front of the house and saw his son and another male shouting. Mr Graham indicated that this other male was shouting at his son. Mr Graham said that this other male was making aggressive moves towards his son.
It was suggested to Mr Graham that he was given the opportunity to provide a statement to police however he said he did not decline that opportunity.
Mr Graham was asked to explain what he saw when he came out the front of his home and he said:
When I came out the front, as I said previous, there was shouting, yelling, it was aggressive. Ross was being – not – he was not an aggressor – trying to word that properly – but the other gentlemen, he was actually, for whatever reason, being aggressive towards Ross. I don’t know the reason why.[7]
[7] Transcript 7 March 2019, 88.
Mr Graham then described the other male as being the aggressor “because he was running towards Ross – he was moving towards Ross.”[8] Mr Graham further described the incident as “by the time Ross got out of his ute – he was parked in his unit. By the time he got out of the ute this other gentleman was already making a movement towards Ross.”[9]
[8] Transcript 7 March 2019, 88.
[9] Transcript 7 March 2019, 88.
It was suggested to Mr Graham that he had seen his son Ross gets out of the ute. Mr Graham denied that and said he did not see that, or the other male get out of the vehicle, but he had obviously done so by the time he got outside.
Mr Graham indicated that the other male was acting in an aggressive way but denied that he was acting aggressively. Mr Graham said that he told his son Ross to get to the back of the house, and get away, and asked the other male who was shouting to leave in his vehicle, which he did after being asked a couple of times.
At this point in time, his other son was out the front of the house opposite the driveway on the side of the pavement. Mr Graham indicated that at the time he was telling the male to leave, his son Ross was 20 to 30 metres away.
Mr Graham indicated that Ross’s car was parked where it normally was at the front of the house. Mr Graham indicated that when he arrived outside that is where Ross’s car was parked.
It was suggested to Mr Graham that in fact, his memory was wrong and that his son’s vehicle was parked in the middle-of-the-road, Mr Graham denied that and said it was the other vehicle which was on the road.
Mr Graham indicated that his memory of the day was quite okay. However, when it was suggested that his son’s vehicle was parked in the roadway, he denied that. Mr Graham also agreed that he had received some form of communication from his son telling him that he was being followed.
Mr Graham accepted that unpleasant words which he described as foul language was being used however suggested it was the other male, not his son.
It was suggested to Mr Graham that either his memory was not particularly good or his memory failed him as to who was yelling and using the foul language and that was because he either did not want to get his son into trouble or had a bad memory. Mr Graham said “no if you want the truth, and the way that it actually happened, then that’s what happened. It was the other guy who was being the aggressor and was getting a lot of the language.”[10]
[10] Transcript 7 March 2019, 93.
Mr Graham denied that his son used foul language at any point and denied that he used words to the effect of get the fuck back in your car.
Mr Graham said that when he got to the top of the driveway, he asked: “what was going on”. He agreed that this only took a few minutes but disagreed with the proposition that he did not say those words.
It was suggested to Mr Graham that he knew what was happening and that is why he said to the other male directly to get into his car. Mr Graham denied that. Mr Graham suggested that his son parked his vehicle nose in on 13 December 2017 and did not reverse it in.
Mr Graham confirmed that when he got to the top of the driveway it was then that he saw the men and he said both of them were far apart. Mr Graham then said that the male driver answered him after he had said to him what was going on by saying “I’m going to Effing get this guy because he did something on the road” this fucking-effing guy. [11] It was suggested to Mr Graham that that never took place and he said it did.
[11] Transcript 7 March 2019, 95.
Mr Graham then said the male said to him after about 30 seconds of this altercation I’ve had enough I’m going and he got into his car and left.
When it was suggested to Mr Graham that the version, he had given was not entirely accurate, he disagreed with that description. It was suggested to Mr Graham that there was another car which drove past the car that had been stopped on the road. Mr Graham indicated that he did not see a second car and was definite that no car came up Fowles Street when this was going on.[12]
Ian Graham
[12] Transcript 7 March 2019, 96.
Mr Graham is the Defendant’s brother and lived at 13 Fowles Street in Weston on 13 December 2017.
Mr Graham indicated that his brother phoned him at around 17:30 hours. Mr Graham indicated his brother seemed distressed about someone following him home and he decided to go out to the front to make sure everything was okay when he got home.
Mr Graham indicated that when he got out the front of the home both males were outside of the vehicle and started to scream at each other, yelling. Mr Graham said that the Defendant told the male to get the eff out of here and that the other guy was not listening. It went on for a few minutes and then his father came from the backyard and at that point, it almost seemed to have stopped when his father yelled at the other guy to leave it all calm down and he moved up the street by himself to the other house.[13]
[13] Transcript 7 March 2019, 100.
Mr Graham said that he and his brother were both on the road when he saw Mr Lyras drive off and then they went inside.
Mr Graham clarified the telephone call and said that his brother seemed distressed and said that someone was following him home, they were aggressive and that’s why he went to the front of the house because of that call.
Mr Graham said that he came out of the house and that’s when both vehicles had pulled up into the street. Mr Graham described that Mr Lyras’s car was very close behind the Defendant’s when they stopped outside the front of the house. Mr Graham indicated that his brother did block the other vehicle in because his vehicle was still on the street but in the driveway a little and it would be difficult for the other car to pass by.
Mr Graham indicated that the gap between the Defendants vehicle and Mr Lyras’s car was approximately 20 metres. They both got out of their cars and both started yelling at each other. They both appeared agitated. At that point, Mr Graham indicated that he just stood back just to watch and make sure nothing physical happened.
Mr Graham said that there was just the yelling and that’s when his father came from the backyard and it all seemed to stop. After his father had said something along the lines of get the fuck out of here, I’ll deal with you, Mr Graham, was a little bit closer because everyone appeared agitated and he came closer to his father, however, once the male got in the car he left and went up the street.
Mr Graham said that both the males were aggressive but there was no physical contact that he saw. He recalls his brother telling the male to “Fuck off constantly”.[14]
[14] Transcript 7 March 2019, 105.
Mr Graham denied that his brother got within striking distance of the other male. Mr Graham stated that he did not see any physical contact. Mr Graham said he did not see the other male using a phone to record what was happening. Mr Graham again denied seeing any physical contact made by his brother toward the other male. Mr Graham said he did not see anyone fall to the ground either.
Mr Graham said he did not see another driver drive past. Mr Graham indicated that his brother did get into his Toyota Hilux but drove it forward into the driveway nose-first. Mr Graham said there was no other driver or vehicle, there was only one car.
Mr Graham was shown a photo which he recognised to be a photo that he took of the driver of the other vehicle moving away from the scene. Mr Graham indicated that when he took that photo the driver had been driving for approximately 15 to 20 metres at the time.
Constable Jones- Evidence
Constable Jones gave evidence before me on 3 July 2019.
Constable Jones confirmed his statement was correct and produced 2 documents in relation to the motor vehicle involved in the incident pursuant to s 72(1)(b) of the Road Transport (General) Act 1999 (ACT) and s 60 of the Road Transport (General)Act1999 (ACT).
The s 72 Certificate identified the owner of the vehicle as the Defendant and the s 60 notice was a demand that the owner identifies who was driving the vehicle at the relevant time. Both these inquires identified that it was the Defendant.
In cross-examination, Constable Jones stated he viewed the video and photos on Mr Lyras’s phone when Mr Lyras attended the police station that same day and those were then sent to him via email the next day by Mr Lyras.
Constable Jones explained that he could not download it the same day as there was a difficulty as Mr Lyras’ s phone was an Apple iPhone and there was a difficulty in doing so.
The Defendant
The Defendant gave evidence on 3 July 2019. The Defendant said that he lived at 13 Fowles St Weston with his father and brother. The Defendant said that he was returning home from work at Mitchell as he did most days.
As the Defendant came off the off-ramp from the Tuggeranong Parkway onto Hindmarsh Drive, he turned right at the traffic lights. There are 2 right-turning lanes, he took the left of the 2 lanes and then later merged into the right-hand lane. As he was waiting to turn right into McInnes Street he noticed a male driver behind him gesturing in an animated way at him.
The Defendant said that he sped up and the vehicle followed him, he said he slowed down and called his brother Ian. The Defendant told his brother that someone was following him after a road rage and for him to meet him at the driveway.
The Defendant said he felt threatened by this person following him. The Defendant said that when he arrived at his home, he attempted to reverse his vehicle in as he usually does when he noticed Mr Lyras filming him.
The Defendant said that he felt threatened and angry and did not know what to do at that point.[15] Then he got out of his car and confronted Mr Lyras, he was angry and was swearing at Mr Lyras.[16] The Defendant said that Mr Lyras said he was going to No. 23 and the Defendant said “you’d want to be going to 23” but that he told him to get into his car and go.
[15] Transcript 7 March 2019,12.
[16] Transcript 7 March 2019,12.
The Defendant admitted to pushing Mr Lyras to his left shoulder. The Defendant denied punching him at all. The Defendant denied damaging his vehicle either.
The Defendant said that his father came outside and was in a rage and told Mr Lyras to get into his car and leave and told his son to get inside as well. The Defendant said that Mr Lyras was told at least 6 times to leave before he actually left.
The Defendant did not see any vehicle approach Mr Lyras. The Defendant said that his brother took a photo of Mr Lyras’s car.
In Cross-Examination
The Defendant confirmed that he was returning home from work on the 13th of December 2017. The Defendant confirmed that the incident took place around 17.37 hours. The Defendant confirmed that he was not wearing steel-capped boots but a highbred boot somewhere between a dress shoe and a boot.
The Defendant confirmed that the first time he noticed Mr Lyras’s car was when he looked in his rear vision mirror and saw him animated. The Defendant agreed that contrary to what he had said in his evidence, he could not be certain Mr Lyras was swearing because he could not hear him.
The Defendant accepted that he sometimes uses the right-hand lane, but disagreed that he had, although he ultimately accepted that it was a possibility. The Defendant said at no time was he behind Mr Lyras.
The Defendant agreed that he had a bull bar on the front but disagreed that the vehicle had been modified (lifted).
The Defendant said that he phoned his brother as he was on Buvelot Street. The Defendant said he did so because Mr Lyras was following him. The Defendant was challenged about why he thought Mr Lyras was following him as there were other vehicles behind both of them. The Defendant said he did not think he was being followed whilst on Hindmarsh Drive or McInnes Street. It was when he saw that Mr Lyras had sped up that he assumed that he was following him.
The Defendant agreed that he thought, as Mr Lyras was following him, he was being “road raged” so he called his brother, so he could have back up if necessary.
The Defendant agreed he did not call the police. The Defendant agreed that he turned into Fowles Street, slowed down and manoeuvred his vehicle as if to reverse in, as was his usual practice.
The Defendant agreed that he got out of his vehicle prior to reversing in and confronted Mr Lyras as he was angry about being followed. The Defendant agreed that only Mr Lyras was in the vehicle. The Defendant said he saw that Mr Lyras was filming him as he approached the vehicle and he felt threatened by this as he did not know what it was, he was filming. The Defendant agreed that he could see Mr Lyras with the phone in his hand and agreed that he could clearly see the number plate of his vehicle but did not take it down.
The Defendant agreed he was angry with adrenaline pumping and he had his fists clenched. The Defendant agreed that the first thing Mr Lyras said to him was “I’m going up here mate I’m going to No. 23”.[17] The Defendant agreed that he did not ask Mr Lyras why he was going to No. 23 and agreed that the first thing he said to him was “you’re fucking following me fuck off”.[18]
[17] Transcript 7 March 2019, 24.
[18] Transcript 7 March 2019, 24.
The Defendant agreed that he did not give Mr Lyras a chance to explain but said “you want to you want to” meaning “have a go”, the Defendant denied that and suggested it was in relation to ‘you want to go to No. 23’. Despite the denial, the Defendant agreed that he was angry, agreed he was confrontational and agreed that he had clenched fists. The Defendant tried to explain that he meant “go to 23” but ultimately agreed that it did not sound like that explanation and agreed that it sounded more like you want to fight.
The Defendant agreed that after that exchange, he told Mr Lyras to get back in his car. The Defendant agreed on his version, it was at that point, that he pushed Mr Lyras, despite Mr Lyras only having his phone in his hand and had not lifted even a finger towards him.
It was suggested that the Defendant actually punched Mr Lyras and the proof is in the bruise on Mr Lyras’ s shoulder, the Defendant denied that. The Defendant agreed that the shoulder he said he pushed is the same shoulder that had the bruise on it.
The Defendant agreed that he had no reason to push him or punch him for that matter as Mr Lyras had not threatened him in any way and was holding his phone at the time. The Defendant agreed that even the push was an assault.
The Defendant agreed that he knew his brother as backup would be there at the house because he told Mr Lyras that he had people coming. The Defendant agreed that despite Mr Lyras telling him he was going to No. 23 he continued to threaten him and said that was because Mr Lyras did not get back into his car.
The Defendant said that it was because he felt threatened by Mr Lyras following him home, filming him and that he was angry and threatened. The Defendant agreed that there is a difference between being unhappy with what someone is doing that you’re not comfortable with and being threatened by it.
The Defendant disagreed with the suggestion that if he had felt threatened by Mr Lyras, he would have taken down his details at the time, the Defendant said that he did not think about it at the time given the adrenaline and the like. The Defendant said they took his number plate afterwards.
The Defendant said he did not hear Mr Lyras say to him, “don’t fucking hit my car” and did not recall his reply “watch me”. The Defendant ultimately agreed after first denying that he motioned as if to kick Mr Lyras’s car.
The Defendant denied the suggestion, that he hit the bonnet of the car. The Defendant agreed that Mr Lyras said to him that he ran him up the road and also agreed that his father was there at that time and said to Mr Lyras to get in his car.
It was suggested to the Defendant that after his father came out he punched Mr Lyras to the back of the head causing him to fall onto the ground and as a result, Mr Lyras hurt his little finger and knee, the Defendant denied that he hit him at all.
The Defendant agreed that he moved his vehicle off the road allowing Mr Lyras to pass through. The Defendant agreed that he did not at any stage call police, despite giving evidence that he was concerned that Mr Lyras might come back and damage his property and despite him having his number plate recorded.
In a question from me, the Defendant said that as he was backing into his driveway, he saw Mr Lyras filming him and that is why he got out of his car. The Defendant said that Mr Lyras was still in his car at that stage and it was he who got out of his car first.
The Defendant denied damaging Mr Lyras’s car at the door seal and denied hitting it. The Defendant denied that another vehicle came onto the street as the incident was de-escalating and the driver of the vehicle spoke to Mr Lyras. The Defendant said that it was not until he had parked his car and was out speaking to his brother that the other car arrived and that was about 15-20 minutes after the incident.
Submissions
Prosecution’s Submissions
The prosecutor submitted that the Defendant suffered abrasions to his knee, calf and right little finger. There was also damage to the door seal on the vehicle.
The Defendant has pleaded guilty to obstructing the vehicle.
The prosecutor submitted that I would have no difficulty in convicting the Defendant giving reasons below for that submission.
There was no doubt an assault had occurred, and it was merely a matter of the extent of that assault and how it occurred.
The prosecutor submitted that the assault occurred when the Defendant punched the complainant to the shoulder, then punched the complainant to the head behind his ear and then punched him again to the head, resulting in him falling and injuring himself. The prosecutor submitted that there were three separate punches.
The prosecutor submitted that there was no issue that both were driving the vehicle and heading on the same streets and roads. The prosecutor submitted that what occurred on Hindmarsh Drive was not relevant, but it is clear that both parties were conscious of each other.
It was further submitted that I would find the accused guilty after having accepted Mr Lyras’s version. The prosecutor submitted that I would need to direct myself according to the Murray direction. I would be satisfied that the version of Mr Lyras’s was truthful and that is where the truth lies.
The prosecutor submitted that there was clearly no permission for the Defendant to act in the way he did and therefore it was an unlawful act. The evidence of Mr Lyras is corroborated to some extent by the photographs as well as the damage quote to the vehicle. It is also further corroborated by the injuries to Mr Lyras’s finger, calf and knee.
The prosecutor submitted that it is the word of the accused versus the word of Mr Lyras, and I would accept that both the Defendant’s brother and father did not see the incident. The prosecutor submitted the video evidence exhibited before me is the best evidence and indicates just how quickly the incident happened.
The evidence of the Defendant’s brother is relevant because he received a phone call from his brother the Defendant, asking him to come out to give the Defendant backup. The video is critical with respect to the timing aspect of the incident and the moment the call was made to when the assault occurred is demonstrated on the video.
It is clear, that the Defendant’s brother came out towards the end of the video and also toward the end of the incident. The prosecutor submitted that the call was important because if I accept that the Defendant made the call in Buvelot Street the time when the Defendant arrived at his home was a significant period of time, yet it appears that his brother took some time to get out to the front of the house. The prosecutor submitted that due to the nature of the call he would have assumed that the brother would have come out to the roadway as soon as possible as that would have been the most prudent thing to do.
Mr Leitch indicated that he saw Mr Lyras get into his vehicle and that I can either accept or reject that assertion.
The prosecutor submitted that I would struggle with the Defendant’s evidence as to why he left the vehicle. He said that because Mr Lyras was filming, he felt threatened, but one would ask why given the Defendant called his brother for backup. The prosecutor submitted that the Defendant did not call the police at any time and did not give any particular reason as to why he did not.
The Prosecutor submitted that the main focus should be on the video, both watching and listening to it. It was submitted that once the Defendant confronts the complainant it is clear that the complainant tells him that he is going to No. 23. It is also clear that the Defendant was the person who was confrontational, aggressive and threatening. It was also clear that he did not wait for backup from his brother because he did not need it.
The prosecutor submitted that when the Defendant confronted Mr Lyras, he had not waited for his brother as backup, nor did he wait in his car, he got out of his car and confronted him and if he feared for his safety one asks why he blocked the roadway so that Mr Lyras could not pass.
The Defendant stated that he only pushed Mr Lyras once however, the photographs of the bruising to the shoulder and neck suggest otherwise. It was also submitted that the bruising to the shoulder was more than one would expect from a push and was more consistent with a punch.
The prosecutor submitted that the video evidence was the best evidence and it demonstrates the negative interaction from the Defendant showing the accused trying to get at the phone of Mr Lyras.
The prosecutor submitted that the Defendant knew that there was only one person in the motor vehicle, yet he took no photo of the number plate or any other details or contacted police. This would suggest that his evidence about being fearful and threatened was not true.
It was submitted that I would accept the version given by Mr Lyras beyond a reasonable doubt because of the video evidence, his evidence given before the Court and the injuries he sustained. His version is substantiated when one listens to the video and views the photographs.
It was further submitted that Mr Lyras could not leave the area because he was blocked in by the Defendant.
The prosecutor submitted that the 000 call and the version given by Mr Lyras in evidence was slightly different and to some extent, his version on the 000 call was exaggerated, however, he indicated that could be because he was upset and dazed from the assault.
The prosecutor submitted that when Mr Lyras gave his statement to police the statement was consistent with his evidence given in court. I note that I did not have access to his statement (emphasis added).
In relation to the property damage, it is clear on the video that the Defendant threatened to kick the Defendant’s vehicle and sounded angry and was, even on his version, full of adrenaline. On the video, you can hear Mr Lyras telling the Defendant not to kick his car.
The prosecutor submitted that in respect to the damage to Mr Lyras’s car, it was a sports car, which he valued, and only drove on weekends, and occasionally at other times. He washed and cleaned his vehicle and knew that there was no damage to that vehicle prior to the incident because he would have noticed it.
The prosecutor submitted that there were two words repeated which can clearly be heard on the video spoken by the Defendant- “you wanna, you wanna”. The prosecutor submitted that I would reject the Defendant’s evidence that it was “you Wanna” go to No. 23 and prefer the explanation that it was an invitation from the Defendant to fight. It was shortly after these words were spoken that the Defendant punched Mr Lyras to the shoulder. (I note that even on the Defendants version it was after these words were spoken that he said he pushed Mr Lyras).
The prosecutor submitted that I would have no difficulty in accepting Mr Lyras’s version given that he was injured as described at the scene and did not have those injuries prior to attending that scene. There was no suggestion by the defence that he had those injuries prior to that incident. Prosecuting counsel submitted that Mr Lyras told the Defendant that he was going to No. 23., indeed, that was where he was going. It was clear that he told the Defendant that he was going to No. 23. It was submitted, that I would accept Mr Lyras as an honest witness and that I would accept his evidence as to how he received his injuries, and I would be satisfied beyond reasonable doubt as to that fact. Given that the injuries were photographed, and they were consistent with the version given by Mr Lyras as to how he received those injuries, I would be satisfied beyond a reasonable doubt that they corroborate his version.
In respect to the words that “you wanna you wanna” and the suggestion it was “you want to go to number 28 [sic 23] the prosecutor submitted that I should not accept that explanation of those words. The prosecutor submitted that I would not accept them because having listened to the video it was clear that from the intonation of the speech, it was not an invitation to go to that area, instead it was an invitation to fight. It was pointed out that it was shortly after using that language that the assaults are said to have occurred.
It was submitted that in relation to the 000 call I should take into account the fact that he had just been assaulted, had been knocked unconscious and was feeling dazed. However, Mr Lyras gave a statement to police which was consistent with his version, the photographs, and to a large extent the 000 call.
In respect to the damage to the vehicle, it is clear on the video that the Defendant threatened to kick the vehicle and Mr Lyras told him not to do so. That is further consistent evidence of the damage to the vehicle.
Defence Submissions
Defence counsel submitted that the Defendant has pleaded guilty to the obstruct charge and I would find that proven.
In terms of the bruise to the shoulder, an offer was made on the basis that it was as a result of a push; therefore, I must be satisfied beyond a reasonable doubt that it was a punch rather than a push that was delivered. The defence counsel referred R v Clearihan paragraphs 19 to 22 as to how I, as a judge sitting alone in my role as factfinder and arbiter of the law, should approach witnesses and why there should be caution in that approach.
Defence counsel submitted that there is no onus for the Defendant to give evidence however the Defendant chose to give evidence and be cross-examined. Defence counsel submitted that I would be satisfied that at some point the Defendant perceived a threat to himself and that I would be in no doubt about that because he called his brother. Defence counsel submitted that I would be satisfied that there was no contest that the vehicles travelled from the Tuggeranong Parkway onto Hindmarsh Drive, McInnes Street Bouvier Street and Fowles Street. The Defence counsel submitted that the Defendant did get out of his vehicle and told Mr Lyras to get out of the area.
Defence counsel submitted that I could be satisfied on the recording that the Defendant got out of the car, and that action could be seen as him being the aggressor, and he chose to advance but, defence counsel submitted, that he did so proactively. He did so because he was concerned and angry and felt threatened. He used words and he pushed him.
It was submitted that those actions could be seen in light of his aggression and language used, that he did assault Mr Lyras in the way described and he did punch the car in the way described. Defence counsel submitted that it would be easy in the circumstances to accept that scenario that the Defendant was violent as described. However, Defence counsel pointed out that the Defendant denied that he did assault Mr Lyras and he is entitled to that denial. Defence counsel submitted that there is support for that denial, with respect to what his brother said he saw and did not see.
In relation to the father’s evidence it was submitted that I should reject his evidence as it is inconsistent with the other evidence, was totally unreliable [and as I noted appeared to be dishonest or at the very least unreliable]( emphasis is added).
Defence counsel further submitted that the Defendant’s brother was there. It was accepted that the Defendant’s brother says he did not see any physical contact, however, that is clearly not true, because the Defendant admits there was contact.
Defence counsel submitted that I would be impressed with the Defendant’s brother as he was forthright and did see the main part of the incident, although defence counsel did point out that the Defendant’s brother said that he saw both parties get out of their car and start screaming at each other, but there was no physical contact and they were 5 metres apart. Clearly, that was not the case, but defence counsel submitted that he gave evidence about what he saw, and that was that he did not see any punches and did not see anyone fall to the ground, and I should give his evidence weight as to that aspect. Upon questioning from me, defence counsel submitted that the Defendant’s brother might have missed the push, but he would not miss punches to the head and someone falling to the ground as a result.
It was suggested to Defence counsel that it may have been that he didn’t see the punches because he wasn’t there at the time, however, it was pointed out, that was not his evidence. Defence counsel pointed to page 100 of the transcript.
Defence counsel pointed out that Mr Lyras made a mistake in relation to the lights at the intersection, that he exaggerated on the 000 call, that the photos of the injuries were taken, some at the time, and some later, and that the injury to the knee looked old. Defence counsel submitted that these were lies. Defence counsel also said that given the denial by Mr Lyras that he did not react aggressively when he was cut off, I should not accept that evidence.
Defence counsel submitted that there was confusion between the evidence of Mr Lyras and Mr Leitch in respect to where the 000 call was made. Mr Lyras said he made it in the driveway at No. 23 and Mr Leitch said he was in the house sitting around. [I note that the evidence Mr Lyras gave was that he got into his car and made the call in the car.]
Defence counsel submitted that the evidence given by Mr Lyras of blood on the ear and blood on the collar of his shirt was not corroborated by any other evidence. Also, defence counsel submitted there was no blood on the knees. Defence counsel submitted that I must be satisfied with those facts beyond a reasonable doubt, and if I cannot be so satisfied, then I cannot find the Defendant guilty, or if I cannot be satisfied as to where the truth lies, I cannot find the Defendant guilty. Further, the photos taken of the injuries was not identified positively as to when and where each particular photograph was taken.
Defence counsel submitted that it was odd that it was not established as to why the Defendant had blood on his shirt and that nobody including the complainant says that they saw blood on his ear or on his shirt and there was no blood on his knee.
Defence counsel submitted that the Defendant does not have to prove anything, it is up to the prosecutor to prove the evidence beyond a reasonable doubt. Defence counsel submitted that the Defendant was very impressive in his evidence and that I would not be able to find him guilty as I could not be satisfied as to where the truth lies because of the matters raised by defence counsel.
Prosecution Submission in Reply
It was submitted by the prosecutor in further submissions that Mr Lyras did go to the hospital, although, I note there were no notes from the hospital.
Decision
In this matter, the Defendant has pleaded not guilty to 4 offences, two offences of common assault, one offence of assault occasioning actual bodily harm, and one offence of damaging property. The Defendant has pleaded guilty to one offence of obstructing a road - CC2018/6595.
I have set out the evidence before me in summary as well as a summary of submissions by both counsel.
I was referred to several cases during the course of the proceedings. I have considered those decisions and will reflect on them in due course.
Directions for Judge Alone Trial
There are certain general directions that I must take into account. I have extracted these from R v Burdon commencing at paragraph 9. I have referred to the Defendant as a generic descriptor. These directions represent the matters to be taken into account in judge alone trials. These are fundamental rules designed to ensure that an accused person receives a fair trial according to the law (see R v DM [2010] ACTSC 137; R v Mulcahy [2010] ACTSC 98):
9. As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw the inferences from them as well as to apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and The Defendant are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
10. The prosecution bears the onus of proving the guilt of The Defendant at all times. The Defendant does not have to prove that he did not commit the offences charged.
11. If The Defendant does adduce any evidence which is consistent with his innocence, he does not have to prove it; it is for the prosecution to disprove it or to show that it is irrelevant, otherwise the prosecution will not have proved its case.
12. The standard of proof of the prosecution case is proof beyond reasonable doubt and The Defendant cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.
13. The Defendant is presumed by law to be innocent of each of the offences unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. The Defendant then loses the presumption of innocence and I must find him guilty.
14. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of any offence charged then he remains presumed innocent and I must find a verdict of not guilty.
15. If I am satisfied that there may be an explanation consistent with the innocence of The Defendant of the charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find The Defendant not guilty.
16. I must determine whether each of the witnesses is a reliable witness that is whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of a witness's evidence and reject part of that evidence or accept or reject it all.
17. I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense, experiences and wisdom in assessing the evidence.
18. The Defendant gave evidence on oath. He was not required to do so; he could have elected not to give evidence. He thereby became a witness in the trial and I must approach his evidence in the same way that I approach the evidence of any other witness. His evidence is no better or worse than the evidence of any other witness in the trial because he is the accused and must be considered in the same way as the evidence of other witnesses. By giving evidence, however, he did not assume any onus to prove anything at the trial.
The Defendant always remains innocent until proven otherwise. It is for the prosecution to prove each element of the offence beyond a reasonable doubt. The onus of proof always falls upon the prosecution to prove its case. I have given myself that warning. See Parkinson v Alexander [2017] ACTSC 201 at 84.
I was asked to consider R v Murray (1987) 11 NSWLR 12.
The Murray direction is generally given if requested by the defence in respect to a warning given to a jury about the unreliability or at least the potential unreliability of uncorroborated evidence given by a Complainant in a sexual offence and in particular, children. There has been much controversy over this warning, and it is accepted that generally speaking it should now not be given in matters where child complainants give evidence to infer that child complainants are inherently unreliable because they are children.
However, it has application in matters where there is only one witness giving evidence of complaint. That warning is given where there is only one witness asserting the commission of the crime. The evidence of that witness must be scrutinised with great care before a guilty verdict is returned. I note his Honour Lee J said at 19:
In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness’ evidence is unreliable.
I was also referred to R v Clearihan in respect to the warnings I should give myself in respect to findings of facts in a judge-alone trial.
In R v Clearihan his Honour Higgins J as he then was, explaining the warnings to be given in Judge alone trials said this:
19. As to the other witnesses, including the accused and the one other witness he called, I bear in mind that the recollection of witnesses, though honestly given, may nevertheless differ. The same event may be seen differently. Some witnesses will be less accurate in their recall than others. Some witnesses will assume a fact though they have seen only a part of events leading to it and because of bias, pre-disposition or otherwise, assume that the fact occurred and that they have observed it. Yet other witnesses may have some particular interest to be served or some particular purpose to be achieved in giving the evidence they do. They may embellish their true observations or even give a deliberately false account in whole or part.
20. I also bear in mind that, even if I am satisfied that the accused has given false evidence in some respect or other, I cannot draw any inference from the falsity of the evidence that he is, or is more likely to be, guilty of the offence charged unless I am also satisfied that the inaccuracy was deliberate and betrays a consciousness of guilt.
21. Further, I have to bear in mind that, though after the event in question the accused spoke to police answering some questions put to him concerning the event, he was not obliged to do so. Nor can I draw any adverse inference from any failure on the part of the accused to then advance some positive matter of refutation, though, of course, the fact that a positive matter of refutation is but latterly advanced may support a conclusion of recent invention. Also, a failure to refute or deny positive evidence of guilt, where it would be reasonable to expect that an accused could do so, may support the acceptance of that evidence. It does not require its acceptance nor does it lessen the onus of proof on the prosecution or enable it to be concluded that, because adverse evidence is not denied, it is, for that reason only, more likely to be true. In this case, the accused, when questioned, did offer a refutation of the charge levelled against him.
22. I further bear in mind that, where an accused has given and adduced evidence in contradiction of prosecution evidence, he does not assume any onus of persuasion let alone of proof. Indeed, to convict the accused not only must I accept positively the prosecution evidence as truthful and accurate, but assuming that, if so accepted, the charge would be made out, I must also be satisfied that the contrary evidence is to be rejected.
I have taken into account those cases and given myself the relevant warnings including warning myself that even if I were to reject the evidence of the Defendant, I must be satisfied on the evidence given in the proceeding that the prosecution has proven the elements of the offence beyond a reasonable doubt. I must be cautious and scrutinise the complainant’s evidence because in relation to the actual incident this is a word on word case.
Having said that, I note there is independent evidence which could substantiate the evidence given by Mr Lyras as to the injuries he sustained. I note, the defence counsel submitted that I could not be satisfied that the bruising on Mr Lyras’s shoulder was not caused by the push the Defendant said he inflicted.
I accept that that may well be true however that was not the only injury sustained by Mr Lyras. Mr Lyras gave evidence that he was punched on the shoulder and there was a bruise which in my view appeared to be consistent with that version. However, there were also two other bruises on Mr Lyras’s neck area which was consistent with being punched a further two times. Those bruises also appear to be of a similar colour to the bruise on the shoulder. Mr Lyras says he received those bruises by way of punches delivered by the Defendant. The evidence about that is consistent with the bruises seen in the photographs.
Further, Mr Lyras indicated that on delivery of the second punch to his head area he fell to the ground and reported some unconsciousness, albeit momentary. Mr Lyras indicated that he injured his knee and his little finger as a consequence of the fall. There were injuries consistent with the version given, these injuries were photographed in the hours and perhaps the next day after the injuries were said to have been inflicted. Those photographs corroborate Mr Lyras’s version of how he sustained the injuries and the means of sustaining those injuries.
Further, there is the video which shows the Defendant blocking the roadway with his vehicle so that Mr Lyras’s vehicle could not pass. It shows the Defendant quickly getting out of his car with it parked sideways on the roadway and aggressively walking towards Mr Lyras’s vehicle yelling at him. I have reviewed that video several times and I am satisfied that I have accurately summarised what is seen and what was said.
It can be heard on the video words delivered by the Defendant which are aggressive in nature. I note that the Defendant said that he was in fear and that is why he called his brother for backup. I also note that he did not use his brother and decided to advance upon Mr Lyras in an aggressive way. I note Defence counsel indicated that was not a sensible course of action to take, however, the Defendant did so and it can be clearly heard on the video that he was aggressive toward Mr Lyras. It can also be heard on the video Mr Lyras telling the Defendant that he was going to No. 23. It was the Defendant who threatened to kick the car, at the time telling Mr Lyras to get into his car.
It can then be heard on that video the Defendant saying “you wanna, you wanna” to Mr Lyras and Mr Lyras telling him that he is going to No. 23. It was clear in that passage that Mr Lyras was trying to explain to the Defendant that he intended to go further up the road. At that point, clearly, the Defendant was the aggressor, and he threatened to kick Mr Lyras’s vehicle. Mr Lyras told him not to kick his vehicle.
Mr Lyras said in his evidence that the Defendant tried to swat away his phone and that is consistent with the phone going black and only the audio was able to be heard. I note Mr Lyras also said that he had to find his phone which was on the ground after he had been knocked to the ground. That was not challenged, and that is consistent with his evidence about the phone losing picture and eventually sound.
The bruises on Mr Lyras’s shoulder and neck, and grazes on Mr Lyras’s knee and little finger are also consistent with his version of events. Defence counsel made much of the reference to blood on Mr Lyras’s collar, however, it is likely this was caused by his little finger brushing on his shirt collar. Mr Lyras could not account for where it came from, but that possibility is consistent with the evidence of him injuring his finger and that is how the blood got on his shirt. I note in the photograph, that the injury to the little finger was consistent with an injury capable of bleeding. I note the laceration as photographed was raw.
In the photographs of the injury seen on the knee, the injury appears consistent with being fresh, unfortunately, the dark areas could be from clots, gravel in the wound or scabbing, however, the appearance is consistent with a recent fall to the roadway and an inference is capable of being drawn that it was fresh and that is consistent with the evidence of Mr Lyras.
Further, the inconsistency referred to by defence counsel about when Mr Leitch says Mr Lyras spoke with police and when Mr Lyras says he made the 000 call can be explained because Mr Lyras said he called the police again when in the house because Police had not attended.
My notes reveal my assessment of Mr Lyras as he gave evidence. I formed the view that he was an impressive witness who did not waiver as to what happened during the incident. I observed that he conceded when he should have and was forthright and did not vacillate. I formed the view that he was an honest historian. I accept his evidence as to what happened that afternoon.
That is not the ends of the matter. As I have indicated earlier in my reasons, I must then turn to the evidence of the Defendant. If I cannot reject his evidence as to what happened that afternoon, then I cannot find him guilty of the offences as charged.
I note that Mr Leitch gave evidence as to what he saw when he drove past Mr Lyras’s car. Mr Leitch said he formed the impression that the male standing in front of Mr Lyras’s car was aggressive. Mr Leitch formed that view because of the male’s body language. I also formed the view that Mr Leitch saw other people in the vicinity at the time he drove past.
I note Mr Leitch also gave evidence of seeing blood on Mr Lyras’s shirt after the incident. That evidence is consistent with the injury to his little finger sustained by Mr Lyras as a result of the assault.
Having summarised the evidence given by the Defendant very carefully I find that I am unable to accept some of his evidence. That evidence goes to the very heart of the matter. That is; what happened that afternoon between Mr Lyras and himself.?
I note that the Defendant accepts that he was the aggressor and perhaps should have remained in his vehicle. I also note he intimated that would have been the wisest move in hindsight, however, he did not, he advanced upon Mr Lyras in a very aggressive manner. This is plainly heard and seen on the video.
It is also plain that Mr Lyras was trying to explain to the Defendant that he was going to No. 23. The Defendant did not take any notice of his protestations and was aggressively telling him to get back in his car.
It was clearly heard on the video that the Defendant threatened to kick Mr Lyras’s car and Mr Lyras pleading with him not to. I note that the Defendant denied that he threatened to kick the car, but it can be plainly heard on the video that he did so. Mr Lyras is heard telling the Defendant it was his fault because he had cut Mr Lyras off at Hindmarsh Drive. At that point, another voice can be heard, and the Defendant says something guttural and it appears that a scuffle took place and the phone recording of the incident goes dead. It is at that point that Mr Lyras says he was punched and fell to the ground.
There is independent evidence in relation to this incident, some shown on the phone, both video and sound which supports Mr Lyras’s version. There is photographic evidence of the injuries sustained, which are consistent with Mr Lyras’s version and not the version given by the Defendant or his brother for that matter.
The Defendant denies that he punched Mr Lyras and says he only pushed him once. That is inconsistent with the independent evidence of the bruising and injuries sustained by the fall.
I reject the Defendant’s evidence about the meaning of the words “you wanna, you wanna”, given his aggression, it was clear to me that he was meaning “you wanna ‘have a go’”. That is a reasonable inference given the circumstances.
The Defendant says Mr Lyras did not fall to the ground, that is inconsistent with the evidence of the injuries sustained.
The Defendant denied damaging the vehicle, yet, I note in his evidence, he did not recall threatening to do so, and Mr Lyras telling him not to hit his car, and him replying “watch me”. It was soon after Mr Lyras alleged that the Defendant did hit his car after he threatened to do so.
I next turn to the evidence of the Defendants brother Ian Graham. Ian Graham gave evidence which was inconsistent with the evidence of Mr Lyras, the video and the Defendant as to how the incident progressed.
Ian Graham says that he was there when both vehicles were pulled up but notes that Mr Lyras was the aggressor at all times and that the Defendant was at least 5 metres from Mr Lyras at all times and there was no physical contact between the pair. That cannot be correct because even on the Defendant’s version there was physical contact and the pair were closer than 5 metres.
I note Defence counsel submitted that the brother might have missed the push but would not have missed punches. I cannot see how that submission is sustained given the video evidence shows the defendant as the aggressor, and the photographs show the injuries to Mr Lyras, consistent with his evidence. The video evidence is clearly inconsistent with the evidence given by Ian Graham about who was the aggressor.
Further Ian Graham does not see Mr Leitch arrive, and clearly, he did arrive and see people at the scene. Mr Leitch also saw a person who he got the feeling was aggressive because of his body language. That person was standing at the front of Mr Lyras’s car when Mr Leitch drove around Mr Lyras’s car.
I ask myself if Ian Graham was to be considered a reliable witness how is it that if he was there at the time of the incident, he did not see that his brother was the aggressor, nor that his brother was within 5 metres of Mr Lyras and sufficiently so to (on the Defendants own version) be close enough to push him? Having considered Ian Graham’s evidence and the other evidence to which I have referred, I consider Ian Graham’s evidence to be inherently unreliable as to what happened on that afternoon.
I reject the evidence of Robert Graham as implausible, dishonest and not an honest account of what took place that afternoon.
Having carefully considered the evidence of the Defendant, I find it inconsistent with the independent evidence as to what happened and I reject the Defendants evidence when he says that he did not punch Mr Lyras 3 times with the last punch to the neck causing Mr Lyras to fall to the ground injuring his finger and knee.
The Defendant’s version is inherently implausible based upon all of the evidence I have considered, which includes the evidence of Mr Lyras, the evidence of Mr Leitch, the video evidence as well as the photographs of the injuries sustained in the incident. Those include the three bruises, one to the shoulder and two to the neck as well as the injuries to the little finger and knee.
I am satisfied beyond a reasonable doubt that the Defendant on 13 December 2017 in Fowles St Weston assaulted Mr Lyras by punching him to the shoulder once, the neck twice with the second punch to the neck, causing Mr Lyras to lose consciousness momentarily causing him to fall to the ground. I am satisfied that the injuries Mr Lyras sustained to his little finger and knee were a direct result of the second punch to the head.
I find the Defendant guilty of 2 counts of assault, the assault occasioning actual bodily harm and damaging the motor vehicle in the way particularised.
| I certify that the preceding two-hundred and sixteen [216] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Special Magistrate Hunter Associate: Suchara Fernando Date: 9 June 2020 |
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