Kelly v Hutcheon
[2017] ACTSC 149
•19 April 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kelly v Hutcheon |
Citation: | [2017] ACTSC 149 |
Hearing Date: | 19 April 2017 |
DecisionDate: | 19 April 2017 |
Before: | Mossop J |
Decision: | Appeal dismissed |
Catchwords: | APPEAL — CRIMINAL LAW — Appeal against conviction —whether nightclub security guard acting in own defence or defence of other staff and patrons— whether use of force excessive |
Legislation Cited: | Crimes Act 1900 (ACT) |
Cases Cited: | M v The Queen (1994) 181 CLR 487 Peverill v Crampton [2010] ACTSC 79 Re an Order Nisi to Review a Decision of the Magistrates Court [2005] ACTSC 50 Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645 |
Parties: | Justin Kelly (Appellant) Andrew Hutcheon (Respondent) |
Representation: | Counsel Mr J Lawton (Appellant) Ms S Saikal (Respondent) |
| Solicitors Kamy Saeedi Law (Appellant) Office of the Director of Public Prosecutions (ACT) (Respondent) | |
File Number(s): | SCA 61 of 2016 |
Decision under appeal: | Court/Tribunal: Magistrates Court Before: Magistrate Cook Date of Decision: 17 August 2016 Case Title: Andrew Hutcheon v Justin Kelly and Paula Tuutai Nuuanga Kimamo Latu Court File Number(s): CC 8674 of 2015 |
MOSSOP J:
Introduction
This is an appeal from the Magistrates Court. The appellant was found guilty of common assault contrary to s 26 of the Crimes Act 1900 (ACT) on 17 August 2016. The notice of appeal is dated 9 September 2016. The grounds of appeal are:
(a)the finding of guilt is unreasonable having regard to all of the evidence; and
(b)the learned Magistrate erred in his application of the law of self defence.
The appeal is an appeal by way of rehearing. The approach to be adopted on such an appeal from a conviction in the Magistrates Court is set out in Peverill v Crampton [2010] ACTSC 79 at [24].
Counsel for the appellant accepted that ground (a) amounted to an allegation that the verdict was unsafe or unsatisfactory. As a consequence the test to be applied is that identified in M v The Queen (1994) 181 CLR 487 at 493.
Background circumstances
The complainant had attended the “Mr Wolf” nightclub in Civic in the early hours of 10 May 2015. He had previously been banned from attending the club. He was escorted from the premises. He alleged that he had been assaulted by another security employee of the club (“the co-offender”) in the staircase leading down to the exit. The magistrate found that a charge against the co-offender was made out. The appellant was present as the complainant was escorted down to the exit. Just inside the door to the premises the co-offender released the complainant and left the premises. The complainant did not leave the premises and the appellant took hold of him and removed him from the premises. What then happened is shown on CCTV footage. It involved, in summary, the appellant moving him away from the premises while keeping hold of him for about one minute
The charge of common assault was particularised by the prosecution as “[the appellant] took over from [the co-offender] around the front door of Mr Wolf by taking hold of [the complainant] and forcing him onto the footpath leading to the road outside Mr Wolf and [the complainant] is expected to give evidence your Honour that he had difficulty breathing due to the force [the appellant] used in taking him by the throat and forcing him out of the club.”
Relevant evidence
There were a number of sources of relevant evidence. The evidence of the complainant was:
And what happened once [the appellant] got you outside?---Yes, like I said he grabbed me by the throat and, yes, grabbed it fairly firm, yes, and just kept squeezing it harder and harder. Then I, yes, just started to lose oxygen in my head, like I just started getting light headed and then, yes he let go…
Later in his evidence the complainant gave evidence that the appellant had punched the complainant with his right hand, hitting him in the left side of the face before walking away.
In cross examination it was suggested to the complainant that the appellant did not strike the complainant’s face at any time and that the complainant had said to the appellant in relation to the other security employee that he was going to go and “fuck him up” and that he was going to kill him. The complainant denied both of these suggestions.
The appellant’s evidence was as follows:
And why did you go back in and get him?---Well, cos when we got down the bottom of the stairs, he was just arguing, you know, pretty much saying it’s bullshit he’s been banned and whatnot. So then he said that he’ll leave. So that’s when [the other security employee] left and then he didn’t left so that’s when I grabbed him and pulled him out.
And when you grabbed him and pulled him out, we can see - it’s pretty much set out in the footage, so we don’t need to go - - - ?---Yeah.
- - - through it in detail, but what was he saying when you were doing that, when you were holding him away from the entrance?---I think, from memory, he was being aggressive, saying “it’s fucking bullshit. Why am I banned?” Sorry if I’m not allowed to swear.
Yes, you’re allowed to swear. Do you remember him saying anything about what he might do to [the other security employee]?---I remember he was - I don’t remember exactly what word it was, but I remember he was throwing words out, saying “I’ll fuck you up” or stuff like that. I can’t remember exactly the words that he was using - - -
Sure?--- - - - But he was threat - making threats and stuff like that.
And we can see from the video that you held on to him for quite a period of time. Did you at any time during that put your hands around him [sic] throat?---No.
Did you twist his shirt such that he was- - -?---I was holding his shirt though because he was arguing “Why am I banned?” and so when I first got out there I remember trying to talk to him about that, and then when he started getting aggressive saying “I’ll fuck you up” that’s when I pushed him out of the - like moved him away from the club, and that’s when I started to back away.
All right. And then towards the end of the footage again we can see you release [the complainant] and then there appears to be your right arm move against his left arm?---Yes.
Do you recall what you did then?---What he did?
No, what you did to him?---Yeah, I just tapped him on the arm and said, “This is all you needed to do a while ago. Calm down and I would have told you I would have let you go.”
High-quality CCTV footage was tendered before the magistrate. This provided the most reliable evidence as to the physical interaction between appellant and complainant.
The relevant events are summarised in the following table. The references to time are those which appear on the CCTV recording itself.
Minute
Event
8:04
A security guard in a vest at the door looks inside and laughs.
8:10
The appellant is at the door.
8:12
The appellant turned round.
8:14
The appellant goes out of view inside the door of the club.
8:16
The co-offender leaves the club with his hood up walking past the appellant who is in the doorway facing the camera.
8:18–8:20
The appellant reaches into the doorway and emerges with the complainant in his grip. The complainant is lightly built and his head is not much higher than the appellant’s shoulder. The appellant’s left hand has grabbed the complainant’s jumper near the complainant’s neck. His right hand is on the complainant’s upper left arm.
8:21
The appellant pushes the complainant back towards a column forming part of the colonnade then to the left of the column approximately 3 m from the door of the club.
8:26
The appellant appears to release his right hand but maintain his left hand forcing the complainant to walk slowly backwards. It appears that words are being exchanged between the two of them.
8:30
The appellant and complainant are standing next to the column. The appellant left hand is still in position. His right hand is in his pocket. The CCTV is consistent with the words being spoken.
8:36
The appellant pushes the complainant back towards another column. The complainant offers some resistance. The appellant uses both hands and his superior mass to push the complainant backwards.
8:40
The appellant grabs the complainant in a bear hug in the area of footpath beyond the colonnade.
8:50
The appellant pushes the complainant backward maintaining the bear hug.
8:53
The bear hug ceases. The appellant uses both hands at about the level of the complainant’s neck or shoulders. The appellant is pushing the complainant backwards.
8:56
The appellant is pushing the complainant back with his left hand at the complainant’s shoulder level. The right hand is visible on the complainant’s neck.
8:59
The complainant is pushed back out of view behind a second column near a food stall.
9:02
The appellant and the complainant emerge from behind the column. The appellant’s left-hand appears to be on the complainant’s neck.
9:05
The appellant walks back and appears to be disengaging.
9:08
The appellant is stepping back deflecting the complainant’s arms.
9:12
The appellant and complainant are obscured behind the first column. The appellant’s right hand is still gripping with the complainant’s left arm.
9:18
The appellant’s right hand strikes the complainant’s neck or shoulder. He does not appear to be struck hard but the complainant does react.
9:20
The complainant and appellant move out of view of the camera followed by the security guard in the vest
The Magistrate’s Reasons
In his reasons the magistrate indicated that he generally accepted the complainant’s evidence:
I am satisfied, consistent with what appeared on CCTV footage, although there were some minor disparities in his evidence, I found [the complainant’s] evidence to be credible and not exaggerated and consistent with my observations of the CCTV footage and consideration of all the evidence before me.
The reasons of the magistrate were as follows:
As to the action of [the appellant] downstairs, I am satisfied with regards to his evidence of the grabbing of the shirt, his manhandling of the [complainant], his holding of him did not amount to self defence. The force was excessive, in any event. It not being consented to, such that I can’t find - in any event. What I can’t find and what I’m not satisfied of as required by the relevant standard that the striking motion which is done at the end of the sequence outside on the footpath amounts either to an assault occasioning actual bodily harm, as [counsel for the prosecution] tended to run that argument.
I am, however, satisfied that [the appellant’s] continuing contact when he grabs [the complainant] from inside the club entrance by his shirt and moves him outside across the footpath over to the further location away closer towards the road from the front entry is an assault. It’s the application of force without consent lawfully justified, as I am satisfied in the circumstances. The fact that [the appellant’s] evidence was and as appeared that he was moving towards him even in such circumstances as a crowd controller you will get people being aggressive and they will say things to them, but that doesn’t mean in the pre-emptory manner by which [the appellant] carries that one and continuous action of removing him from the front deliberately and with force across to the other side out towards the road establishes, in my view, that it was without consent, it was an application of force that was not justified by law and as a consequence I am satisfied the assault on charge 8674 is proved.
Consideration and conclusion
The submissions of the appellant were that the evidence was such that it was not open to the magistrate to be satisfied that the prosecution had proved beyond reasonable doubt:
(a)that the appellant was acting in self defence;
(b)that, if he was acting in self defence, the force used was excessive.
Counsel submitted that the exercise involved removing the complainant from within the club and was one continuous course of conduct. He submitted that it was an inference that the appellant was acting in defence of himself, other security officers or patrons of the club. As a consequence he submitted that it was not open to the magistrate to have found as he did because the evidence could not exclude beyond reasonable doubt that the appellant was acting in self defence and could not establish beyond reasonable doubt that if he was so doing his actions were excessive.
Counsel for the appellant accepted that there were no relevant statutory powers which would have authorised actions by the appellant outside the premises.
The relevant test is that set out in the Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645 at 661-662:
It is whether the accused believed up on reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.
…
If the response of an accused goes beyond what he believed to be necessary to defend himself or if there were no reasonable grounds for a belief on his part that the response was necessary in defence of himself, then the occasion will not have been one which would support a plea of self-defence.
In assessing whether the magistrate erred in making the findings that he did, the most significant evidence is that in the CCTV recording. That demonstrates an interaction in which the appellant, being a much larger and a stronger man, physically controls and dominates the complainant. The complainant is not given the opportunity to leave the vicinity of the club but is rather held under the control of the appellant until he is released. Only at the very end of the video is there any attempt by the appellant to disengage from physical contact with the complainant. Up until that point the interaction is consistent with a larger stronger man attempting to physically dominate and intimidate a smaller man.
In my view the appellant has not established any error on the part of the magistrate in reaching the conclusion beyond a reasonable doubt that the appellant was not acting in self defence in that he did not believe that what he was doing was necessary for his own defence or for the defence of other security staff or patrons of the premises. The appellant did not give evidence to that effect. The evidence was not such as to compel a magistrate to have a reasonable doubt about whether he was acting for that reason. It was clearly open to the magistrate to find beyond a reasonable doubt that the appellant was not acting in defence of anybody but rather seeking to intimidate or otherwise deter the complainant from any further involvement with the club or security staff outside the club.
Similarly it was in my view open to the magistrate to conclude beyond a reasonable doubt that the conduct of the appellant went beyond what was necessary to defend either himself or other security staff or patrons. The co-offender who had assisted in the complainant’s removal from the premises had left the premises and the vicinity prior to the complainant leaving the premises. This was the only person who, on the appellant’s evidence, any clear threats were directed to by the complainant. In so far as aggressive language was directed at the appellant (“I’ll fuck you up”), it was clearly open to the magistrate not to draw the inference that the conduct observed on the video was undertaken by the appellant because he believed it necessary to defend against that threat. Even on the hypothesis that there was a reasonable doubt as to whether the appellant was acting to defend someone then it was open to find there were no reasonable grounds for undertaking a protracted exercise of physical contact with the complainant. Similarly the nature of the aggressive language used by the complainant was not such that the magistrate could not be satisfied that the protracted physical contact with the complainant was upon reasonable grounds.
Counsel for the appellant made reference to the decision of Higgins J in Re an Order Nisi to Review a Decision of the Magistrates Court [2005] ACTSC 50. That was not a case involving a claim of self defence. It was a situation in which security officers took what appeared to be very violent steps including hard kicks to the head of a complainant while he was on the floor and further kicks to the torso and the head when the complainant attempted to get up again causing him to lose consciousness. There was, however, evidence that the complainant and his companions were all behaving violently and resisting removal from the bar. The magistrate had concluded that the complainant and his associates had attacked and set upon the two security officers and vastly outnumbered them. The magistrate had found that the security guards would have been remiss in not trying to secure the premises from the ongoing fracas. His Honour agreed. The circumstances of that case are very different to the present case. First, the events took place on the premises in an attempt to remove persons who had become trespassers from those premises. Second, the nature of the threat faced by the security officers was substantially different from whatever threat might have been facing the appellant. I therefore consider that the decision does not provide any relevant assistance in determining the present case.
So far as the other ground of appeal was concerned, no particular submissions were addressed to the proposition that the magistrate had erred in his application of the law of self defence beyond those that were addressed to the proposition that a finding of guilt was unreasonable.
In summary the appellant has not demonstrated any error on the part of the magistrate in reaching the conclusion that he did that the appellant was not acting in self defence, or if he was so acting, that there were no reasonable grounds for a belief on his part that the response was necessary.
Order
The order of the Court is that the appeal is dismissed.
| I certify that the preceding twenty-six [24] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 23 June 2017 |
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