Matia v The Queen; R v Matia

[2015] NSWCCA 79

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Matia v R; R v Matia [2015] NSWCCA 79
Hearing dates:	27 October 2014
Decision date:	01 May 2015
Before:	Hoeben CJ at CL at [1] R A Hulme J at [143] Davies J at [148]
Decision:	In the conviction appeal, leave to appeal is granted but the appeal is dismissed. In the Crown’s appeal against sentence, the appeal is dismissed.
Catchwords:	CRIMINAL LAW – conviction appeal – offence of manslaughter – single punch by security guard during confrontation – identification of security guard – whether verdict was unreasonable and unable to be supported by the evidence – Crown case made up of eye witness evidence and CCTV footage – conviction appeal dismissed – CROWN APPEAL AGAINST SENTENCE – whether sentence manifestly inadequate – security guard’s actions to defend another – forceful punch not a reasonable response in the circumstances – Crown submissions inconsistent with findings of sentencing judge – appeal against sentence dismissed.
Legislation Cited:	Crimes Act 1900 – s18(1)(b)
Cases Cited:	Edwards v R [1993] HCA 63; 178 CLR 193 M v The Queen [1994] HCA 63; 181 CLR 487 Markarian v R [2005] HCA 25; 228 CLR 357 MFA v The Queen [2002] HCA 53; 213 CLR 606 Regina v Wang (NSWCCA, unreported, 11 February 1994) SKA v The Queen [2011] HCA 13; 243 CLR 400 Zoneff v R [2000] HCA 28; 200 CLR 234
Category:	Principal judgment
Parties:	Lynn Matia – Applicant Regina – Respondent Crown Regina – Appellant Crown Lynn Matia - Respondent
Representation:	Counsel: M J Stratton SC/Ms N Mikhael – Applicant Ms JA Girdham SC/Mr C Everson - Respondent Solicitors: Marsdens Law Group – Applicant J Pheils, Solicitor for Public Prosecutions - Respondent
File Number(s):	2011/55406
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 14 February 2014 Before: McClintock DCJ File Number(s): 2011/55406

Judgment

1. HOEBEN CJ at CL:

Offence and sentence

On 22 August 2013 the applicant was indicted before his Honour Judge McClintock SC at the District Court in Sydney on the following charge:

That he on 30 December 2010 at Sydney in the State of New South Wales did feloniously slay Wilson Duque Castillo.

This offence is contrary to s18(1)(b) Crimes Act 1900 for which the maximum penalty is imprisonment for 25 years.

2. The applicant pleaded not guilty and was tried before his Honour and a jury. The jury retired to consider their verdict on 12 September 2013 and on 17 September 2013 returned a verdict of guilty.

3. On 14 February 2014 the applicant was sentenced to imprisonment with a non-parole period of 18 months commencing 14 February 2014 and a balance of term of 18 months.

4. The applicant has appealed against that conviction on the following grounds:

Ground 1 – The learned trial judge erred in leaving the alleged lies of the appellant as evidence of consciousness of guilt.

Ground 2 – The verdict of guilty was unreasonable and cannot be supported having regard to the evidence.

5. The Crown has appealed against sentence on the basis that the sentence imposed was manifestly inadequate.

THE CONVICTION APPEAL

The Crown case

6. The deceased Wilson Castillo sustained a head injury during an assault which occurred in Kings Cross shortly after 11pm on 18 December 2010. He died two weeks later in hospital as a result of complications arising from the injury.

7. The applicant was a security guard at “The Trademark Hotel”. This hotel is situated on Bayswater Road, near the junction of Darlinghurst Road on a laneway.

8. The deceased’s brother, Wilmer Castillo, had been refused entry to the hotel by the applicant and other security guards. He reacted by brandishing a paint-scraper, which was a bladed object and which was mistaken for a knife by the security guards. The guards reacted by confronting Wilmer Castillo and then shepherding him away from the hotel down to Darlinghurst Road.

9. Initially the applicant was part of the confrontation outside the hotel entrance. The same security guards followed Wilmer Costillo and the deceased down Darlinghurst Road. At a point Wilmer Costillo ran onto Darlinghurst Road, pursued by one of the security guards. The deceased also ran onto Darlinghurst Road, behind his brother followed by security guards. Moments later a melee developed in the middle of Darlinghurst Road. It was the Crown case that in this melee the deceased was punched by the applicant, sustaining a serious head injury either as a result of the punch or as a consequence of his head hitting the ground.

EVIDENCE AT TRIAL

General background

10. The evidence at trial included that of eyewitnesses who had observed parts of what occurred. These included Wilmer Castillo; Yuli Galindez, the aunt of the two Castillo brothers; Sebastian Gomez-Ruiz, a work companion of the Castillo brothers; and Miguel Gil, also a work companion of the Castillo brothers. A number of bystanders gave evidence, as did some of the security guards. None of the security guards claimed to have witnessed the actual striking of the deceased.

11. The Crown tendered recordings from various CCTV cameras associated mainly with commercial buildings on the Bayswater Road and Darlinghurst Road periphery. The relevant CCTV footage was placed in a compilation which became exhibit G. It was principally from this document that the Crown invited the jury to be satisfied beyond reasonable doubt that it was the applicant who struck the deceased in the middle of Darlinghurst Road causing the injuries which ultimately led to his death.

12. The background to the offence was largely undisputed. The deceased ran a painting business. On 18 December 2010 he was painting a house at Potts Point in the company of two employees, Miguel Gil and Sebastian Gomez-Ruiz. At about 3.30pm they were joined by the deceased’s brother, Wilmer Castillo, who also worked in the business. All four were wearing distinctive white painters’ clothing. At about 4pm they finished work, walked to a bar in Kings Cross called the Sugarmill and began drinking alcohol.

13. At around 10.30pm they left the premises. They walked to a nearby Mexican fast food restaurant on Bayswater Road called Guzman Y Gomez. By then they had been joined by Yuli Galindez who was in the same age group as the Castillos, notwithstanding that she was their aunt. At this time, the men were obviously intoxicated.

14. The video of Guzman Y Gomez showed that they were all in high spirits and significantly affected by alcohol. There was obvious disinhibition, particularly by the deceased. There was some horseplay between the painters and at one point the deceased was seen to take a paint scraper (which is a sharp blade with a wooden handle) and move onto Bayswater Road.

15. The deceased was dressed in long white pants and a short-sleeved white t-shirt with a blue armband. Wilmer was in short white pants with a long-sleeved white top, with the trademark “Dulux” on it. Sebastian was in short white pants and a short-sleeved t-shirt. Miguel was in a short-sleeved white t-shirt and long white pants. The evidence established that Wilmer also had a paint scraper.

The CCTV footage

16. The following is relatively uncontroversial and is based on what appears on the compilation of CCTV footage (exhibit G). The security guards were wearing dark clothing and can be clearly distinguished from the painters who were wearing white clothing.

17. At about 11pm Sebastian and Wilmer left the restaurant and went to the Trademark Hotel which was only a few metres away. One or both of them wanted to use the bathroom, but they were refused entry. They can be seen leaving the restaurant at about 3 minutes and 30 seconds into exhibit G.

18. At that stage these security guards were at the front door of the Trademark Hotel: Marwen Halbouni (Halbouni), Talalelei Poasa (known as “Fonu”); the applicant, Ezekiel Tupou (Tupou) and Brad Reid (Reid). At about 11.05pm Wilmer can be seen talking to the security guards at the door of the Trademark Hotel and the applicant appears to refuse him entry. Wilmer appears to argue the point and eventually the applicant pushed him away. It was an open handed push which did not cause Wilmer to fall over.

19. At that stage, Wilmer produced a paint scraper and Miguel arrived. Passers by can be seen to be stepping away. The applicant picked up a bollard but placed it between himself and Wilmer rather than using it as a weapon. Wilmer and Miguel can be seen to move away. There was evidence that the security guards and passers by believed that Wilmer was holding a knife at the time.

20. At about 4.43 minutes into exhibit G, Miguel was seen going down to the ground. Wilmer picked up a large outdoor bench seat and attempted to swing it in the direction of the security guards. The deceased came out of the Guzman Y Gomez restaurant and had his arms extended, palms forward, in a pacific stance. At about 4 minutes and 49 seconds into exhibit G, Wilmer raised his right hand which was holding the paint scraper and swung it at one of the security guards.

21. It was common ground that as the deceased and Wilmer left Guzman Y Gomez restaurant, they were confronted by Hasan Fazlilar, a security guard. Although the deceased was attempting to calm the situation, an altercation occurred between him and Fazlilar. Thereafter, security guards Reid, Cummins, Tupou, the applicant, Fazlilar and Halbouni moved relatively slowly along Bayswater Road towards Darlinghurst Road with the deceased and Wilmer moving backwards in the same direction. It was accepted by the Crown that the applicant was not aggressive, being described by one of the security guards as trying to calm things down.

22. A little later Wilmer advanced towards Fazlilar and in an overarm action threatened him with a paint scraper. Wilmer then retreated and the deceased again held out his arms indicating that they should separate. At this time the applicant appeared to slow markedly and lagged behind Tupou, Halbouni, Fazlilar, Reid and Cummins.

23. It was accepted that the applicant appeared to keep the deceased and Wilmer in sight until near the border of Darlinghurst Road, but was not a participant in what was a relentless following of them by the other security guards. The applicant played no part in that activity and dropped back, following at a slower pace. At one point the applicant was close to Gil, who had caught up, but made no aggressive move towards him. It was accepted that the applicant was the last of the security guards in that group to enter Darlinghurst Road and its surrounds.

24. The Castillo brothers backed into Darlinghurst Road followed by some of the security guards. At about 5 minutes and 2 seconds into exhibit G, Wilmer appeared to wrap something around his hand. In his evidence he said that he was wrapping his belt around his hand and he used it to hit one of the security guards in the face. One of the security guards, John Hopoate, said that he was hit with the belt buckle. Wilmer gave evidence that the deceased asked him for the paint scraper and that the deceased took it from his pocket. Wilmer said that this happened before he hit the man with his belt buckle.

25. At about 5 minutes 54 seconds into exhibit G, the compilation DVD showed footage taken from the Flight Centre shop. The footage is of poor quality, the action is some distance away and it is difficult to make out what is happening and who is depicted. It was the Crown case that this footage showed a man dressed in black with long sleeves striking the deceased once. The defence case was that it was impossible to say from the CCTV that the man with long black sleeves struck the deceased or that the man in black sleeves was the applicant.

26. Later the CCTV showed Wilmer being brought to the ground and assaulted (about 6 minutes and 17 seconds into exhibit G). It was not part of the Crown case that the applicant took part in that assault.

27. The police arrived about 6 minutes and 45 seconds into exhibit G. At about 7 minutes and 33 seconds into exhibit G the applicant is shown walking back in the direction of the entrance of The Trademark Hotel in Bayswater Road. He continued to work as a security guard at the door.

Further background

28. The events which gave rise to the offence occurred within a very short space of time in Darlinghurst Road. Although a considerable amount of eyewitness evidence was adduced at trial, I propose to summarise only that which related to the events immediately before and after the deceased was apparently struck and fell to the ground. As might be expected from such a dramatic and violent event taking place over a short duration, the accounts of the eyewitnesses differed substantially. There appeared to be considerable confusion as to the sequence of events and in particular, as to the persons involved in them.

29. Wilmer gave evidence that he and the deceased entered into traffic in Darlinghurst Road followed by Hopoate. He said that the deceased was close to him until the corner of the street at which point he (Wilmer) had taken his belt from his trousers, wrapped it around his hand and was swinging the buckle as a weapon.

30. Wilmer said that at the point when he struck the security guard in the face, he was on Darlinghurst Road. During or just before this event, while on Darlinghurst Road, he gave the deceased the paint-scraper. It was the deceased who asked for the paint-scraper and when doing so he appeared to Wilmer to be very angry. Wilmer said that he could tell this by his face.

31. In his police statement Wilmer said “I saw [the deceased] go forward towards some of the bouncers in front of him, I do not know how he was holding the paint-scraper, I know [the deceased] was right handed”. At trial Wilmer could not recall this but did recall the deceased then running to the left after which he did not see him again. After he had been punched a number of times by Hopoate, he observed some “bouncers” near his brother on the ground. He was unable to describe the bouncers and unable to precisely identify how and when his brother was struck. He was able to indicate that his brother pulled the paint-scraper out and was going to fight with it.

32. When assessing the evidence of Wilmer, one has to keep in mind his advanced state of intoxication which was noted by police who first attended the scene of the incident. Apart from that evidence, Wilmer was of no assistance in identifying how it was that the deceased was struck or by whom. Sebastian and Gil could not give relevant information in respect of the offence.

33. At trial there was no further useful information from the evidence of either the security guards or the painters as to what exactly happened when the deceased was killed. Evidence concerning that matter came from bystanders and it was confused and contradictory. The deceased’s aunt, Ms Galindez, gave evidence of observing a “bouncer punching both of her nephews and girlfriend”. She said Wilmer was on the footpath almost in front of the GNC Live Well Shop. She said the deceased was starting to run on the road and there were two bouncers near him. They were wearing black, one was wearing a suit. They were punching the deceased and after he was punched, he fell to the road.

34. Under cross-examination she said that she saw Wilmer lying on the footpath with Gil next to him. She saw people wearing black over the top of both of them. At that point in time she said the deceased was on the road trying to run. She did not see anything in his hands. When she saw the deceased running she was “maybe 200 metres” away from him. She saw two men throwing punches towards the deceased. They were chasing him. She was certain that at the time she saw this happening, Wilmer and Gil were already on the footpath.

35. In a statement which she made on 20 December 2010 Ms Galindez said she saw the deceased running away from two men who were chasing him and that when they caught him they punched him on the left side of his head near his ear. She described one of the men as wearing a long black jacket, but she was not sure what sort of pants the man was wearing. The second man was also wearing black, but she could not remember further details. She said that she saw the deceased fall onto the road next to a white taxi. She heard police sirens and the two men walked away from the deceased. One of them walked past her and she shouted at him in Spanish. Shortly after witnessing this incident, she was asked by a police officer if she saw what happened. She told him “no” because she was scared. When shown the CCTV footage (exhibit G), she agreed that her memory of who left the restaurant first was faulty. She denied that the deceased was drunk. Both in chief and in cross-examination she said that the security guards were well built and had tanned skin.

36. Miguel Gil gave evidence that he followed a group of security guards, who were following Wilmer and the deceased. When he went around a corner he saw Wilmer and the deceased being hit. Wilmer was being hit by a few guys. They were wearing black mostly. The deceased was on the ground not moving. Then he (Gil) was hit in the face and went to the ground.

37. Under cross-examination Gil said that he did not see anything unusual happen at the door of the Trademark Hotel when he tried to enter. He at no time saw Wilmer with a paint-scraper or swinging a belt. He did see Wilmer pick up a bench outside the Mexican restaurant. He agreed that he told police “I can’t say that any of the people involved in hitting Wilmer or myself were the security guards from the Trademark Hotel”. He confirmed that he did not see what happened to the deceased.

38. Christopher Ball gave evidence of having caught a taxi to Kings Cross with a friend, Ryan Richards. He saw four or five people having an argument, two people backing down the street and two people going towards them. Two of the people were dressed in white and two or three were dressed in black. The two persons dressed in white were backing away down the road.

39. Mr Ball saw one of the men in white flick something shiny or reflective at one of the men in black. After that one of the men in black chased the guy into the second lane of the road and punched him. It was a right hand punch to the head. The man who threw that punch was wearing a black, long-sleeved shirt and long black pants. At the time the man who was punched was facing the man who was punching him. The man who was punched fell to the ground and did not move. The man who threw the punch walked to the side of the street. Mr Ball described this man as being around six foot, solid build and of Islander appearance. Mr Ball saw only one punch thrown.

40. After that, Mr Ball saw another fight break out. He saw a person in black of similar build, perhaps a little bigger, become involved in a fight with a man in white in which multiple punches and kicks were thrown. The man in white fell to the ground and was dragged to the side of the street. When he saw these things, Mr Ball was standing still on the other side of Darlinghurst Road. He said that the traffic had stopped at the time.

41. Mr Ball made a statement to the police on 3 January 2011. He approached the police because of what he had seen on TV. He said that the first incident had started and finished before the second incident occurred. He agreed that when he made his statement to the police, he did not say that the person wearing black in the first incident had long sleeves.

42. When asked about the difference between what he said in his statement and what he had said in evidence, he said:

“Q. I think you gave a description in your evidence of the man in black that hit the man with the shiny that flicked the shiny object as having long sleeves. Black long sleeved top?

A. I think it was black long sleeved. It was all black. Yeah, it was all black there was no colour, yeah.

Q. But you are not sure about that, about the length of the sleeves?

A. I'm pretty sure it was long sleeve, yeah.

Q. Do you agree that there's no mention in your statement of that? There's no mention in your statement to police about the man having --

A. I haven't really read it that well.

…

Q. Do you agree that the description you gave of the man who chased the male who flicked the shiny object is wearing black pants and a black top?

A. Correct.

Q. Do you agree that - have a look at the rest of the statement if you like and just satisfy yourself that there's no further description?

A. Yep.

Q. Is that right?

A. That's right, yeah.

Q. And you told the truth in that statement, didn't you?

A. Yes.

Q. To the best you could remember?

A. Yeah.

Q. You made the statement at a time when the events were fresh in your memory, do you agree with that?

A. Yeah, it was sort of it was still a few weeks after, yeah.

Q. Certainly much fresher than today?

A. Correct.” (T.263.39 – T.265.21)

43. Ryan Richards accompanied Mr Ball to Kings Cross. He saw a man running wearing light coloured clothing, chased by another man wearing all black clothing. The first man was holding a metallic object, swinging it towards the man chasing him. The other man punched him with his right fist, a strong punch to his face. He was wearing tight-fitting black clothing, long black pants and a short-sleeved shirt. He did not recall what this man did after he punched the first man.

44. Mr Richards said he saw a second man running after another man in light clothing. The man in light clothing turned and looked unsteady. The man chasing him was wearing black clothing, short-sleeves, tight-fitting black pants and black shoes. He punched the second man in the face and then twice more. He said that man was much bigger in height and weight than the man who threw the other punch.

45. In cross-examination Mr Richards said that there were approximately 5 – 10 seconds between the two assaults with the assault on the man with the metallic object occurring first in time. He said that the first man in white appeared to be trying to connect with his pursuer, using the metallic object. He said the second man in lighter clothing was holding something like a lanyard with something metallic on it like keys. He was hit by a man wearing long black pants and a short-sleeved black shirt, who was of a bigger build than the first man wearing black.

46. Tasmin Page was at Kings Cross on the night of 18 December 2010 with Christopher Maloney. When they were under the “Coke” sign, he saw at least two men running towards him pursued by men who looked like security guys. He said the security guys were dressed in dark clothing. When the security guys caught up with one of the men in white, he was thrown onto a taxi and hit, kneed and kicked. The other man in white was hit by several guys. In cross-examination he agreed that not all the security guys were involved in the fighting the whole time. Some of them were observing more than participating.

47. Christopher Maloney said that he saw three men dressed in white, backing out of Bayswater Road. They were followed by five or six men who appeared to be bouncers from the Trademark Hotel. These men were dressed in black, some were wearing t-shirts, but two or three had long-sleeved shirts. There was an exchange of punches between the men in white and the men in black. One of the men in white ran onto the road. He was punched several times and kneed. He saw this man stumble back onto a taxi. Two men in black assaulted this man.

48. Alborz Ajeli was the front passenger in a car near the Coca-Cola sign with the sign on his left (i.e., the vehicle was travelling south). He saw a fight start and then spill onto the street. There was a man dressed in white and an individual in black. The man in white turned to confront his pursuers and somebody landed a really good hit on his head. He was getting pummelled until the police arrived. The man in white fell onto the road. Mr Ajeli was short sighted, but was not wearing his glasses that night. He recorded part of the fight on his iPhone. This vision became part of exhibit G.

49. Some still photographs from this footage were tendered and became exhibit L. Mr Ajeli thought there were four assailants, but could not describe the man who threw the good punch. He said that there were three or four men kicking the man on the ground. Exhibit L included a photograph of a police officer, standing over the body of the deceased on the road. Behind the police officer is a security guard wearing a long-sleeved black top. The security guard is clearly the applicant.

50. Sergeant Hutchins was rostered at Kings Cross on 18 December 2010. He heard a radio message that there was an incident under the “Coke” sign in Darlinghurst Road. He went there and spoke to a security guard, Neil Cummins. Mr Cummins said “These guys just tried to stab us. The knife is lying on the ground”. He pointed to a paint-scraper and a belt next to the deceased. Sergeant Hutchins took a photograph of the deceased, the paint-scraper and the belt. That photograph became exhibit N. It showed the paint-scraper and the belt lying on the roadway in close proximity to each other and the deceased.

51. Constable Fleming gave evidence that he was working with Constable Dong at Kings Cross on the night of 18 December 2010. He was walking south of the “Coke” sign in Darlinghurst Road when a male yelled out to him. Constable Fleming and Constable Dong ran towards the “Coke” sign where Constable Fleming saw two people in white, one lying motionless on the road and another person struggling with two people on the footpath. He saw a paint-scraper near the man lying on the road. The person struggling on the footpath was Wilmer.

52. Constable Dong gave evidence that when he and Constable Fleming ran to where a fight was taking place before the “Coke” sign in Darlinghurst Road, he saw three South Americans in white overalls, one in the middle of the road and two in scuffles on the footpath. He went to one of the men in white who had his back on the ground and who was being held down by two security guards. One of them said “he’s got a knife, he’s got a knife”. He saw a spatula on the footpath. The two men in white on the footpath were identified as Wilmer Castillo and Miguel Gil.

53. “Witness “A”” was a member of the Australian Army who was entitled to have his identity protected under Commonwealth legislation. He was in the Kings Cross area when he saw three men in white running towards him. They were dressed in paint-spattered white clothes. He saw a man in white standing between lanes of traffic. A large man in black hit him several times in the back of the head and the upper torso. He was hit at the back of a vehicle which looked like a Toyota Corolla. He said that a second man in black then set upon the man in white. The man in white slumped to the ground and then both men in black stomped on his head and upper torso. One of the other men in white ran past him and another man in white was pushed over and the men in black piled into him. Witness A described the man who first got to the man on the road as dressed in dark clothing, about 6 foot 2 inches, very stocky build with his hair in a ponytail or bun. The person who joined him was wearing dark pants, a dark grey shirt, sleeves rolled up to his elbow and short neat hair. In cross-examination Witness A said that his clear recollection was that the man dressed in white, who was assaulted behind the car, was assaulted by two men.

54. Robert Hunt gave evidence that he saw a group of men dressed in black chasing three men dressed in white. He saw one man in white on the ground and a man dressed in black standing over him. He was not able to describe his clothing in any more detail, except that he appeared to be all black.

55. Mark Alam gave evidence that he saw a person he described as a “big Islander guy” hit a man dressed in white in the face. He said that the “big Islander guy” only struck him once. He was dressed in dark clothing.

56. A statement of Joshua Lamb was read since Mr Lamb was in Afghanistan at the time of trial. He was with Witness A when he saw two men dressed in white clothes running from Bayswater Road. There were between 6 and 10 men running behind them. He saw the first male in white run onto the road and then start swinging his fists towards the men in black. He swung four or so times, but four or five of the men in black overwhelmed him. One of them drove him into a taxi. He fell down between two taxis and did not move. He just lay there on the ground. About four or five of the men in black began stomping and kicking the man on the ground. A third man in white came over and verbally tried to stop the assault. The men in black grabbed the second man in white and forced him against a shopfront and then onto the ground. At that time a number of police arrived.

57. Benjamin Simpson gave evidence as to what happened outside the Trademark Hotel. He did not see subsequent events. He saw a man in white brandishing a paint-scraper three or four times. He said that when he first saw the paint-scraper he thought it was a knife.

58. A statement of Wairangi Cassidy was read. She said that she was on the terrace of the Piano Room at Kings Cross. She looked out to Darlinghurst Road and saw a person wearing white clothes being assaulted by one person, with another person nearby. The person initially assaulting the person in white was wearing black clothes, black pants and black T shirt, formal black clothing. This person began to knee the male wearing white to the head. This was happening at the back of a taxi. Then Ms Cassidy saw three males in dark formal clothing assaulting another man dressed in white. The male being assaulted at the back of the taxi stumbled away but then Ms Cassidy saw the other man in white lying on the road.

59. There were other eyewitnesses but their evidence added nothing to the issues, the subject of this appeal.

60. Dr Irvine was the forensic pathologist who prepared the post mortem report. She said that his blood alcohol level was .24. On arrival at hospital, he was suffering from an acute traumatic subarachnoid haemorrhage. She found that the cause of death was complications of blunt force injuries to the head and associated medical treatment. Dr Irvine said that she examined photographs taken of the upper body and head of the deceased shortly after his admission to hospital and that she could not see any marks, such as bruises, abrasions or cuts. She agreed that the fracture to his skull could have been caused by a single blow to the head.

61. Detective Tearne gave evidence that he was the officer in charge of the matter. Through him a timeline of the CCTV footage (exhibit S) was tendered. Video exhibits were played including exhibits C, U and V. Detective Tearne gave evidence as to how a number of people were dressed on the night of the incident. He had watched the CCTV footage from all sources for many hours before preparing exhibit S.

62. John Hopoate was wearing white pants and a grey T shirt. Hassan Fazlilar was wearing a short-sleeved black collared shirt and black pants. Ezekiel Tupou had a white bandage on his right wrist and forearm and there was a black cast on the outer edge of his arm. Mr Talalelei Poasa was wearing a short-sleeved, black collared, button up business shirt with a three-quarter length black T shirt on underneath it and black jeans or pants. Neil Cummins was wearing a tight fitting, dark coloured T shirt and dark jeans.

63. Detective Tearne spoke to Miguel Gil on the night of the incident and asked him what had happened but Gil said he did not know. Detective Tearne asked Wilmer Castillo what happened on two occasions, but he was unable to give an intelligible answer. Detective Tearne assessed that he was too intoxicated to be interviewed that night. He asked Ezekiel Tupou and Hassan Fazlilar if they knew what had happened to the guy lying on the road and each of them said “no”.

64. It was through Detective Tearne that two pages from the Incident Register at the Trademark Hotel for 18 December 2010 were tendered and admitted as exhibit X. The first page of the Incident Register was written and signed by the applicant:

“A male wearing white shorts and white T shirt try [sic] to enter the venue, I told him he cannot enter due to intoxication and dress regulations, he then became aggressive and violent by threatening to attack me with a silver sharp blade, his friend also approach me in [+] a threatening manner so I stepped back and grabbed the bollard next to me to protect myself then other security ran over to help me. Then the male picked up a chair and throw it at us so we backed off. A third male teamed up with them heading towards our Piano Room security, so we walked to Piano Room entrance [sic], enough guards were there so I came back to Trademark entrance.”

65. The Crown relied upon this exhibit as evidence of a lie i.e., that the applicant had only walked as far as the Piano Room entrance, which in turn was evidence of consciousness of guilt on his part. The case for the applicant was that this evidence was not evidence of consciousness of guilt because to so use the evidence, the jury had to assume what the Crown had to prove which was that the applicant was involved in the assault on the deceased.

66. The second page of exhibit X was written by Talalelei Poasa. This read:

“Two males approach front door Trademark already showing signs of RSA. They were refused entry for dress code and RSA. Male was told to leave front door for dress code and RSA then turned on security with a sharp silver blade. Security then moved the two males on towards the Piano Room door, one male with white T shirt and white pants then turned on security with his friend.”

67. The following security guards gave evidence. John Hopoate, Talalelei Fonu Poasa, Marwen Halbouni, Laga Toomata, Brad Reid, Hassan Fazlilar and Neil Cummins. None of their evidence implicated the applicant in any violent conduct. The common theme was the aggressive behaviour of some of the painters when trying to enter the Trademark Hotel at the beginning of the sequence of events, the belief of most of the guards that one of the men in white had a knife and the decision by a number of the guards to follow the men in white when they left the entrance to the Trademark Hotel. The following pieces of evidence, however, were relevant to the issues before the Court.

68. Mr Hopoate said that he tried to move two of the men in white down the road away from the Trademark Hotel. One of the men was holding a blade and the other was swinging a belt buckle. The one with the belt buckle hit him with the belt buckle on the side of the head. The man he fought with ended up on the footpath. He did not see what happened to the other man who he thought was holding a knife.

69. Mr Poasa with Mr Reid restrained one of the men in white. This was not the man who had the belt. After he grabbed the man’s arm he saw a blade on the ground. He did not see the applicant involved in anything in Darlinghurst Road.

70. The applicant did not give evidence at trial. The issues in the case were whether the Crown had established that the applicant struck the deceased and whether (assuming the Crown was successful on the first issue), the Crown had excluded defence of another and lawful arrest.

THE APPEAL

Ground 1 – The learned trial judge erred in directing the jury that the alleged lies of the appellant could be used as evidence of consciousness of guilt.

71. To understand this ground of appeal, it is necessary to set out some further factual material.

72. The Crown relied upon what it alleged was a lie, or lies, by the applicant in the Incident Register, exhibit X, (see [66] hereof). The applicant, while accepting that the entry was admissible, argued that it should be admitted only as a matter going to the applicant’s credibility (as in Zoneff v R [2000] HCA 28; 200 CLR 234) and not as evidence of consciousness of guilt (as in Edwards v R [1993] HCA 63; 178 CLR 193).

73. The basis for the applicant’s submissions at trial was elaborated in the course of an exchange with the trial judge as follows:

“DEFENCE COUNSEL: …    But what he says is Piano Room entrance. Now the Piano Room entrance is all the way around the corner, as your Honour has heard, and on Darlinghurst Road. But again the jury would have to be satisfied that he was involved in the incident on Darlinghurst Road before they could find that there was a lie, or an omission which amounted to a lie. I respectfully suggest that there is an element of circularity there. …

…

HIS HONOUR: Isn't that what the Crown is saying, he's omitting his role in an incident in Darlinghurst Road?

DEFENCE COUNSEL: But you see what I'm saying is that that's the $64,000 question in this trial, is what is his role? Again I refer to that point that I make about circularity of reasoning because in order to be able to use this as a lie the jury would have to accept that he was involved, rather than just being there. Because there's no real issue, your Honour, in the trial that he was in the vicinity of the Piano Room entrance, there's no issue about that. We haven't made an issue about that, there's been no cross examination to suggest he wasn't in or around the Piano Room entrance.” (T.842.11 -843.2)

74. The Crown in its closing address said:

“Now if you accept that the accused was on the road, if you’re satisfied beyond reasonable doubt of the things that I suggest you would be on the evidence I’ve referred to, then what he’s done there is at the end is clearly omit to include what if anything he had done on Darlinghurst Road. He’s clearly omitted that. Well what use can you make of that? Well the Crown points to that as evidence of a lie. It’s a lie by omission the Crown says. If you think it is a lie then you are entitled to use it in this way. That he told that lie because telling the truth might reveal his involvement in respect of this particular charge that he now faces. That’s how you can use it if you accept that it is a lie.

There’s other things though that you’ve got to take into account and his

Honour will give you directions about this, but the Crown with respect echoes what his Honour will say that you must exercise a great deal of care before you would use that omission in the way I’ve suggested because you’ve got to be satisfied that it is a lie, that he knew what the truth was then and he didn’t put it in. You’ve also got to be satisfied that he didn’t omit that for some other reason, like protection of someone else or something like that. So you can see that you need to exercise some care about it. The Crown says it’s open to you to use that omission as an independent piece of circumstantial evidence which can be joined with the other circumstantial evidence which would lead you to be satisfied beyond reasonable doubt of his guilt.” (T.11.9.2013, 19.40 – 20.10)

75. His Honour then directed the jury in relation to the alleged lie or lies of the applicant. The applicant does not challenge the correctness of the direction.

“I also will now give you a direction in respect of the matter raised during the addresses and address by both counsel which is the issue, I think it is in respect of exhibit X which was I think the recording of incidents outside the - yes, the incident register and it is said by the Crown that that provides additional material in relation to its case and it concerns that evidence. The Crown says that the entry into the incident register is a lie by omission. First, of course, you must be clear about what a lie is. A lie is to say something untrue knowing at the time of the making of the statement that it is untrue. If a person says something which is untrue but does not realise at the time that it is untrue, then it is not a lie. The person is simply mistaken or confused or possibly as was suggested not incorporating every event because of various reasons advanced. If the person later comes to realise that what he said or she said was incorrect, that does not transform the statement into a lie. To be a lie, the person must say something that the person knows at the time of making the statement is untrue.

In this case the Crown says Mr Matia knew that he had participated in events on the roadway and that he was being untrue by deliberately leaving it out. If you find that Mr Matia made the statement to which I have referred to you and you find it was a lie, then I must give you direction about the care with which you must approach the task of deciding what significance, if any, it has. You may take this lie into account as evidence of the accused’s guilt but you can only do that if you find two further things which I will refer to shortly. When I say you can take it into account as evidence of the accused’s guilt, I am not suggesting to you that it could prove the guilt of the accused on its own. What I mean is that it can be considered along with all the other facts that the Crown relies upon and which you find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt. In other words, and as I understand the Crown case, the Crown says this is a circumstance, one circumstance you can take into account in the circumstantial case against the accused.

The Crown did not suggest as I have already indicated that on its own it could prove the guilt of the accused. Apart from the fact that the accused made the statement and that it amounted the Crown says to a deliberate lie, before you could use it as some evidence of the accused’s guilt, you must find two further matters. First, you must find that what the accused said amounts to - to a lie - that relates to an issue that is relevant to the offence that the Crown alleges that he committed. It must relate to some significant circumstance or event connected with the alleged offence. The Crown says it is relevant because in effect he is denying his presence at Darlinghurst Road and denying his participation in an assault.” (SU 22-23)

Applicant’s submissions

76. The applicant submitted that the asserted omission could not in fact be regarded as a lie. He submitted that the Incident Register report relied upon by the Crown stated that “we walked to the Piano Room entrance …”. The unchallenged evidence was that the Piano Room entrance was in Darlinghurst Road. It followed, he submitted, that his statement could not be regarded as a lie.

77. In the alternative, the applicant submitted that the asserted omission, which was the failure to mention his participation in an assault, gave rise to a circularity of reasoning. There was no evidence that he was involved in the assault of anyone other than the deceased. It followed, therefore, that the only evidence that he participated in an assault was the evidence that he had assaulted the deceased. The applicant submitted that the difficulty with leaving this submission to the jury was that the only evidence that he was lying was the evidence that he had in fact committed the offence.

78. The applicant submitted that the danger created by leaving the Crown’s submission to the jury was that the jury would reason as follows:

“We are satisfied (on a standard less than beyond reasonable doubt) that the applicant was involved in the assault on the deceased because he was wearing a dark, short-sleeved shirt on the night of the incident and Mr Ball (the witness) says that the person who struck the deceased was wearing a dark, short-sleeved shirt. We are satisfied of that because of evidence that the applicant’s omission of mentioning that matter was because of a consciousness of guilt. As a result of those two findings, we are satisfied beyond reasonable doubt that the applicant is guilty of the offence.”

79. The applicant submitted that a similar problem arose in Regina v Wang (NSWCCA, unreported, 11 February 1994). The facts of that case were that Wang was charged with two counts of the murder of his two flatmates. His defence was that a gang of four men talked their way into the shared house, murdered his flatmates and took him with them to dispose of the bodies. Thereafter, the gang released him. He did not report the matter to the police because he thought the gang would kill him. The jury were told that if they found his account (which was referred to as “the big lie”) was a lie, and the only explanation for it was his guilt, the lie could be used to infer his guilt.

80. Finlay J (with whom Hunt CJ at CL and Allen J agreed) held that this was a misdirection:

“In my view this last direction above, that the statements of the accused to the police that it was the gang of four who killed the two people was available to be considered as a lie revealing consciousness of guilt, was an error. The appellant’s story of the Gang of Four being responsible was inextricably interwoven with the appellant’s denial of his own guilt. In the circumstances of this case it was necessary for the jury to find that the appellant had committed the murders in order to find that his “Gang of Four” statement was a lie. To suggest that his story in that regard was false was to suggest that his denial of his guilt was false. Any suggestion that the denial by an accused person of his guilt can in some way be found to be a lie which may assist a jury to find him guilty is obviously a circulatory argument and is erroneous. As Young CJ said in Regina v Perera (1982) VR 901 at 905:

“Of course a mere denial by an accused of the charge laid could not be used to indicate a consciousness of guilt any more than it could be used to afford corroboration of the allegation of a prosecutor.””

Consideration

81. There was evidence to which the Crown referred in its address to the effect that the applicant, together with other security guards, moved from the Trademark Hotel entrance and followed the deceased and his fellow painters past the Guzman Y Gomez restaurant and past the Red Berry Café towards the Piano Room.

82. What exhibit L made clear was that the applicant went beyond the entrance to the Piano Room. He had moved to a position near to where the deceased was struck and collapsed. He can be clearly seen in the background to where the deceased’s body is shown in exhibit L. Of course the iPhone footage, from which exhibit L was created, came into existence some minutes after the deceased was hit because police officers were depicted at the scene. Exhibit L did not establish that the applicant was in that location when the deceased was struck. It did, however, place the applicant approximately 20 – 25 metres past the Piano Room entrance some minutes after the incident.

83. Leaving aside the question of whether the applicant was the only security guard with long sleeves, exhibit L made it clear that exhibit X was inaccurate by omission in that the applicant walked beyond the Piano Room entrance by approximately 20 – 25 metres. Accordingly, it was open to the Crown to submit that the applicant had told a lie when he said in exhibit X “so we walked to Piano Room entrance, enough guards were there so I came back to Trademark entrance”. It was also open to the Crown to submit (with the qualifications and restrictions identified by the trial judge in his direction) that this detail was omitted because of a consciousness of guilt.

84. It was well open to the Crown in its closing address to say “what he’s done there at the end is clearly omit to include what, if anything, he had done on Darlinghurst Road”. He clearly omitted the detail that he had walked some distance past the Piano Room entrance. There is nothing circulatory in that proposition. The jury did not have to be satisfied that he had struck the deceased before they could be satisfied that he had told a lie in that he had gone well beyond the entrance to the Piano Room before coming back to the Trademark Hotel entrance.

85. Of course, as the Crown pointed out in the second part of its submissions on this issue at trial (at [74]), and as his Honour pointed out in his direction (at [75]), there were a number of other perfectly reasonable explanations for why the applicant would have said nothing about going beyond the Piano Room entrance to a location near to where the deceased was struck. He may have been afraid that to do so would make him an object of suspicion. Alternatively, although he was not involved, he may have seen who struck the deceased and have been seeking to protect him (a scenario suggested by the Crown). Being aware that a man had been killed, it was quite reasonable for the applicant to try to place himself at a location where it could not be thought that he had anything to do with causing that death.

86. It is unfortunate that his Honour at the conclusion of his direction said:

“The Crown says it is relevant because in effect he is denying his presence at Darlinghurst Road and denying his participation in an assault.”

87. That is not an entirely accurate summary of the careful way in which the Crown put its submission. If his Honour had added the word “therefore” or “thereby” before the word “denying” what his Honour meant would be clearer. What the Crown was saying and what his Honour intended to make clear was that the consequence of the applicant saying that he did not go beyond the Piano Room was that he could not have participated in an assault on the deceased. Just because his Honour could have made the position clearer does not mean that the direction was wrong or misleading. Counsel for the applicant at trial did not think so or she would have asked his Honour to clarify the direction.

88. The scenario here is quite different to that which occurred in Regina v Wang. In Wang it was necessary for the jury to find that the appellant had committed the murders in order to find that his “Gang of Four” statement was a lie. That is not the case here. The jury could have found that the applicant was telling a lie by omission when he said that he did not go beyond the Piano Room without it being inevitable that they should also find that he had struck the deceased. As indicated, there were a number of exculpatory reasons why the applicant would have recorded what he did in exhibit X which were not consistent with him having struck the deceased.

89. This ground of appeal has not been made out.

Ground 2 – The verdict of guilty was unreasonable and cannot be supported having regard to the evidence.

90. The applicant made the following submissions.

1. Although there were many eyewitnesses to the assault on the deceased which led to his death, not a single one of them identified the applicant as being the person who struck the deceased. That included both the witnesses associated with the deceased and those associated with the applicant.

2. No forensic evidence connected the applicant to the striking of the deceased.

3. There was no evidence of any admissions by the applicant. Even if the jury accepted that the applicant told a lie in relation to whether he went past the Piano Room, that did not necessarily connect him to the offence.

4. The CCTV footage was not of sufficient quality for the Crown to say that the jury could identify the applicant as the person who had struck the deceased.

5. The only possible connection between the applicant and the person who apparently struck the deceased is that there was a man wearing long dark sleeves next to the deceased when he went down, that Mr Ball said that a man wearing long, dark sleeves punched the deceased and that the applicant was wearing a top with long, dark sleeves.

91. The applicant challenged the proposition that a person in a long-sleeved, black shirt punched the deceased. He submitted that the only witness who gave evidence to that effect was Mr Ball. He submitted that none of the other nine witnesses who apparently saw the assault, gave evidence to that effect and that there was no good reason why the evidence of Mr Ball should be preferred to their evidence.

92. Yuli Galindez said that two bouncers chased the deceased onto the road and punched him until he fell to the ground. Ryan Richards described two assaults on two men wearing white. In each case the assailant was wearing black but with short sleeves. Tasmin Page saw one man in white at the rear of a taxi who was hit a couple of times by a security guard and was kicked and “kind of hit the ground”. He was not sure whether there were one or two security guards who hit this man. Christopher Maloney saw two bouncers pursue a man in white onto the road and punch him several times causing him to fall down. The man stumbled back into the back of a taxi. Albarz Ajeli (who was short sighted and without his glasses) saw a man in white receive a very good hit to the head causing him to fall down. This man was hit by more than one person. “Witness A” saw a man in white in the middle of the road between traffic lanes. He was hit a number of times by a large man wearing black. A second man dressed in black then set upon the same man in white. Both men in black stomped on the head of the man in white after he fell to the ground. Joshua Lamb saw four or five men in black overwhelm a man in white, punching him in the head causing him to collapse by the side of a taxi. A number of men in black continued to stomp and kick his head. Wairangi Cassidy, who was on the balcony of the Piano Room, saw three men wearing black attack a man wearing white on the road. When he collapsed onto the road, they left him.

93. The applicant submitted that the only witnesses to suggest that a person with long sleeves was involved in the assault on the deceased were Mr Ball and Ms Galindez, who described one of the men as wearing a long, black jacket which was longer than a suit jacket. He submitted that apart from that apparent similarity, the other details provided by Mr Ball and Ms Galindez concerning the person or persons who assaulted the deceased were different. The applicant noted that Mr Ball only gave evidence about a person with long sleeves for the first time at trial and had made no mention of that fact when he made his statement to the police. He submitted that there was another difficulty in that Mr Ball described a man running onto the road, flicking something white, which was more consistent with what Wilmer Castillo was doing with his belt than with what the deceased may have been doing with a paint-scraper. He submitted that Mr Ball’s description of the security guard striking the deceased with his right fist was not borne out by the CCTV footage, which showed the person in long sleeves with his left arm extended.

94. The applicant submitted that the Court could not be satisfied that the only security person wearing long sleeves was the applicant. He submitted that unless the Court could be satisfied as to that issue beyond reasonable doubt, he must succeed under this ground.

95. The applicant submitted that there was no conclusive evidence that he was the only person wearing a black, long-sleeved shirt, working at either of the venues on the night. He noted that Marwen Halbouni, the owner of the security company, gave evidence that in addition to the security guards at the Bayswater Road entrance, there were other security guards working at the Piano Room on the night of the incident. He referred to the list of names given to Detective Tearne, which included a further nine security guards who were working at the Piano Room. These persons were not interviewed, nor was any information obtained as to their clothing. There was no evidence as to whether any of the security guards working at the Piano Room became involved in the confrontation with the painters.

96. In the alternative, the applicant submitted that the escalation in violence was at every point initiated by Wilmer Castillo or the deceased and that at no time was a security guard seen to resort to the use of weapons. He submitted that if the jury were satisfied that the applicant had struck the deceased, it was not open to them to be satisfied beyond reasonable doubt that he was not acting in self defence or in the defence of another or others.

Consideration

97. The task of this Court where such a ground of appeal is raised is well established and well known – M v The Queen [1994] HCA 63; 181 CLR 487; MFA v The Queen [2002] HCA 53; 213 CLR 606; SKA v The Queen [2011] HCA 13; 243 CLR 400. The Court must make its own independent assessment of the sufficiency and quality of the evidence. The question is ultimately whether notwithstanding that there is evidence upon which a jury might convict, nevertheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand (M at [492]) or, whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused.

98. In making that assessment, the Court is obliged to give full weight to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt and has had the advantage of having heard and seen the witnesses.

Was the applicant the only security guard with long sleeves?

99. On my analysis of the evidence, I am satisfied that it was open to the jury to find beyond reasonable doubt that the applicant was the only security guard on the night of 30 December 2010 to be wearing a dark coloured top with long sleeves.

100. The initial confrontation at the entrance to the Trademark Hotel and the subsequent movement of security guards to Darlinghurst Road was picked up by a number of CCTV cameras. These included cameras from the Hotel, the Guzman Y Gomez restaurant and various other business premises culminating in the film taken from the Flight Centre shop. There was also the video material on the iPhone of Alborz Ajeli. What the CCTV cameras showed is contained in the compilation video, exhibit G, and the still photo compilations in exhibit S, with its accompanying timeline, and exhibit L.

101. The video clip and the still photograph compilations, although of varying quality, allow the identification of all of the security guards who moved from the entrance to the Trademark Hotel and followed the painters to Darlinghurst Road. It is clear that the security guards so depicted were those stationed at the entrance to the Hotel. There is no evidence of any security guard from the Piano Room, following the group or otherwise, being involved. That is not surprising given that the catalyst for the guards following the painters was the aggressive behaviour of Wilmer and perhaps Gil in producing what the guards believed was a knife and then subsequently attempting to swing a large outdoor bench seat towards them. Not only was there no evidence of any other security guards being involved, there was no reason for them to do so.

102. I am further persuaded to that conclusion by the fact that the security guards moved towards the painters and Darlinghurst Road as part of a group, albeit in a rather loose formation. The CCTV material reveals the applicant to be part of that group, albeit at the rear of the group and moving more slowly than the main body. While the evidence of the bystanders is contradictory in a number of respects, there is no evidence to the effect that any other security guard or group of security guards joined the group moving from the entrance to the Trademark Hotel at any time.

103. I have concluded that the suggestion that there may have been another security guard from the Piano Room wearing a top with long, dark sleeves is speculative at best. There was, of course, no issue that the applicant was wearing a top with long, dark sleeves. That is clear from exhibits S and L, in which he can be clearly identified.

The incident

104. Once that issue is decided adversely to the applicant, the CCTV footage taken from the Flight Centre shop takes on considerable importance. Although the precise actions of the persons depicted are difficult to discern, it is clear that a security guard wearing a top with long, dark sleeves was next to the deceased as he appears to be falling and that the security guard had his left arm fully extended. For the reasons already stated, that security guard can only be the applicant.

105. Despite having watched the CCTV footage on many occasions, I have not been able to actually see any contact between the fist of the security guard and the deceased. The movement of their bodies, however, is fully consistent with the applicant having struck the deceased causing him to fall at the location where his body was subsequently found. The CCTV footage in effect places the applicant next to the deceased at the very time when he appears to be falling towards the ground. Another security guard and a painter can be seen nearby, but that is almost certainly Hopoate and Wilmer. That other painter is not seen to fall at that time or in that location.

104. Once one is satisfied that the applicant was the security guard depicted in the CCTV footage, that footage of itself is sufficient to establish that it was the applicant who struck the deceased. While none of the conflicting eyewitness accounts are completely consistent with what is shown on the Flight Centre CCTV footage, most can generally be reconciled with it. Certainly none of the descriptions, given the circumstances in which the observations were made, is such that it would negate what the CCTV footage appears to show.

105. It was the Crown case that the observations of Mr Ball were to be preferred to those of other eyewitnesses because they were the most consistent with what was shown on the CCTV footage. His description is of a one-on-one confrontation and a single punch causing the deceased to fall. Not only is that observation consistent with the CCTV footage, it is consistent with the injuries observed to the deceased when taken to hospital.

106. Some eyewitnesses referred to the deceased, or someone who might be the deceased, being attacked by two security guards, i.e. Ms Galindez, Mr Maloney, Mr Ajeli, Witness “A” and Ms Cassidy. Apart from the fact that these events happened very quickly and that there was more than one incident occurring at the same time, these observations can be explained by the emergence onto Darlinghurst Road of the deceased and Wilmer, followed by Mr Hopoate and the applicant. Two separate fights appear to have developed with more security guards assisting Mr Hopoate and attacking/restraining Miguel when he became involved. If as seems likely, the deceased was knocked to the ground behind the taxi by one blow, it would have been comparatively easy for bystanders who were not familiar with the painters to become confused as to which of them was being hit at any particular time, particularly when they appear to have been significantly outnumbered by the security guards who were present.

107. It is true that if the only evidence available was that of the observations of the bystanders, it would have been insufficient to convict the applicant. By the same token, however, the failure of the eyewitness observation evidence to be fully consistent with what appears on the CCTV, does not establish a reasonable doubt to the effect that it was not the applicant who struck the deceased and caused him to fall behind the taxi.

108. Just because there was no eyewitness, who specifically identified the applicant as the deceased’s assailant, and because there was no forensic evidence or unequivocal admissions to that effect, could not prevent the jury being satisfied beyond a reasonable doubt on that issue. Similarly, just because the numerous eyewitnesses gave different accounts and the CCTV material did not perfectly identify the image of the assailant, did not preclude the jury being so satisfied beyond a reasonable doubt.

109. As the conduct of the trial makes clear, the applicant did not directly run a “self-defence” case. His case was that he was never at the location where the deceased was struck. Nevertheless, it is also clear from the evidence of the eyewitnesses, and from the fact that the deceased had armed himself with a paint scraper, that self defence was sufficiently raised. The Crown did not submit otherwise.

110. A difficulty for the applicant is that there was no evidence from him to explain his conduct or its reasonableness. It is also important that the deceased’s possession of the paint scraper had only come about after the pursuit had been commenced and towards its end. Once Wilmer and the other painters had been refused entry to the Hotel and had moved away, there was no good reason why the security guards should have pursued them. In the absence of any other explanation, the most probable inference was that the guards intended to exact retribution for what the painters had done.

111. It is in that context that one has to take account of the applicant’s physique, his position as a security guard and his knowledge of the previous conciliatory conduct of the deceased.

112. To cause the damage which it did, the force in the applicant’s punch must have been substantial. Against the background of the unlawful pursuit of the deceased by the applicant and his companions, his act of striking the deceased with such a forceful punch, even if committed in self defence or the defence of another, was not a reasonable response in the circumstances. Accordingly, it was open to the jury to make a finding to that effect beyond reasonable doubt.

113. I am satisfied on my assessment of the evidence that it was open to the jury to find beyond reasonable doubt not only that it was the applicant who struck the deceased but that when he did so it was not a reasonable response in the circumstances.

114. This ground of appeal has not been made out.

CROWN APPEAL AGAINST SENTENCE

117. As already indicated, pursuant to s5D of the Criminal Appeal Act 1912 the Crown appealed against the sentence imposed on the applicant by McClintock DCJ on 14 February 2014. The applicant was sentenced to imprisonment with a non-parole period of 18 months commencing 14 February 2014 and expiring 13 August 2015 with a balance of term of 18 months expiring 13 February 2017. The sentence proceedings took place on 13 December 2013 and his Honour handed down sentence on 14 February 2014.

118. The Crown relies upon a single ground of appeal. The sentence is manifestly inadequate.

Sentence proceedings

119. The maximum penalty for the offence of manslaughter is imprisonment for 25 years and there is no standard non-parole period.

120. Because the applicant was convicted after a trial by jury, it was necessary for his Honour to make findings of fact on which to base his sentence. A number of factual issues, which were not in dispute, have already been set out in the factual background to the conviction appeal. It is not necessary to repeat them. His Honour made the following additional findings of fact.

121. Following the confrontation at the entrance to the Trademark Hotel, a number of security guards followed the painters, including Wilmer and the deceased. The applicant was one of those guards but in doing so he was walking more slowly and lagged behind the other guards. Up until the entry into Darlinghurst Road the applicant maintained visual contact with the painters but was not a participant in “what was a relentless following of [the deceased] and his brother by others”. At one point the applicant was close to Miguel but did not engage in any aggressive actions towards him. He was the last of the security guards to enter the Darlinghurst Road area.

122. After the deceased and Wilmer had reached Darlinghurst Road, the deceased obtained a paint scraper which had previously been in Wilmer’s possession. At about the same time Wilmer removed his belt and wrapped it round his wrist with the buckle being lose. Wilmer then used the belt as a weapon and struck one of the guards, John Hopoate, in the face. Hopoate then pursued Wilmer into the traffic on Darlinghurst Road which was at that stage at a relative standstill and tackled him. A struggle then ensued.

123. His Honour set out what he saw depicted by the CCTV:

“The Flight Centre video starts at 23:04:13 on its clock. It shows Wilmer and Hopoate running into the centre of Darlinghurst Road. Hopoate again appears to be in all white, possibly because of the quality, the lighting or both.

Wilmer appears to fall. Hopoate appears to fall or jump on top of him. Both disappear behind a taxi and out of view. Wilson appears running towards Hopoate and Wilmer. He is only a short distance behind. His arm or arms are raised. [The applicant] appears behind Wilson. [The applicant] is then next to [the deceased]. [The deceased] appears to partly turn to face him although this is indistinct. [The applicant] appears to strike [the deceased]. These events all occur within two seconds on the counter clock.

By this stage Halbouni and Cummings are directly behind [the applicant]. [The deceased] appears to fall behind the taxi. [The applicant] remains on his feet, remains for a short time and the police arrive.

Other security guards pour in. There is a disturbing frenzy of violence between the security guards (other than [the applicant]) and Wilmer and also Gil. [The applicant] does not take part. Apart from the single punch he does not do anything else on the video. He moves away from behind the taxi.

The iPhone witness video which I have referred to earlier shows [the applicant] in the area at the time that the police arrive or the police have arrived. It shows [the deceased] on Darlinghurst Road not moving. Next to him appears to be a belt used by Wilmer. The paint scraper is also next to him.

[The applicant] returns to the Trademark Hotel. At a point later he strikes his hand into his palm seemingly imitating a punch.” (ROS 22.9 – 23.8)

124. On the basis of those images from the CCTV footage, his Honour made the following finding:

“Wilmer ran towards the centre of the road followed by Hopoate. [The deceased] ran out following Hopoate and holding the paint scraper in his hand. It can be inferred that his purpose was to confront Hopoate to assist his brother. His conduct was no longer placatory. Wilmer fell and Hopoate landed on top of him. [The deceased] ran, about to join the fight to defend his brother. [The applicant] ran to [the deceased] who appears to start to turn. [The deceased] was armed, [the applicant] struck [the deceased]. He struck him only once but he did so with very considerable force. He did so to prevent, I find, [the deceased] attacking Hopoate. I find to the requisite standard that he believed that his conduct was necessary to defend another. That conduct was not a reasonable response in the circumstances. That finding is consistent with the jury verdict.

[The applicant] had been the subject of significant provocation by Wilmer at the door of the Trademark Hotel and had acted in self-defence by picking up the bollard and shepherding Wilmer away from the doorway. He had replaced the bollard and then followed behind the forefront of the security guards, him not being in the forefront of any of the confrontations after the Guzman y Gomez and had not demonstrated any animosity to either Wilmer or [the deceased]. In the light of all the circumstances the decision to become involved in the physical altercation appears to have been made only after Wilmer struck Hopoate.

…

The verdict is consistent with the finding that the offender was acting to defend another and the action of [the applicant], given his physique, his position, his knowledge of the previous conciliatory conduct of [the deceased], in striking [the deceased] with such a forceful punch was not a reasonable response in the circumstances as he perceived him. I do not find the offender was in any way engaging in any lawful process of arrest; the second “defence” that was left to the jury apart from self-defence.” (ROS 26.5 – 27.6)

125. His Honour then reviewed the applicant’s subjective case. His Honour noted that the applicant did not provide a statement to police, nor did he give evidence either at the trial or on sentence. In making findings as to the applicant’s subjective case, his Honour relied upon a medical report from Dr Lennings.

126. The applicant was born in New Zealand, although he was of Samoan heritage. His father was a factory worker and his mother was a nurse. There was some domestic violence in the home by his father directed to his mother. The applicant was the fulltime carer of his mother, who had suffered kidney failure as a result of diabetes. The applicant used to take her to dialysis three times a week.

127. The applicant came to Australia at the age of 13 in about 1989. He initially commenced work as a forklift driver and after some years obtained a security licence. He had been working in security for about 2 years when these events occurred. There had never been any trouble in respect of his work in the security industry previously. His security licence was revoked when he was charged. Since then he had been unable to obtain regular employment.

128. The applicant had been in a steady relationship since 1992 and was the father of a 16 month old son when sentenced. Thirty testimonials were provided to the court attesting to his good character, notwithstanding the finding of guilt by the jury. All of these attestations were to the effect that the offence was out of character. His Honour took these matters into account.

129. Dr Lennings found that the applicant had expressed a genuine sense of sadness and remorse for what had occurred. Dr Lennings concluded that the applicant was struggling to deal with the emotion that he felt about the effect on both his own and the deceased’s families. He felt that the current offence was most uncharacteristic. Dr Lennings assessed the risk of future serious violence as low. Dr Lennings suggested a lengthy parole period to minimise the destructive impact of incarceration and the anti-social effect which prison might have on the applicant.

130. His Honour applied sentencing principles as follows:

“It is an important principle that a sentence must fit the offending and must have regard to the objective seriousness of that offending. The offender must be adequately punished for his offending. At the same time the sentence must be proportionate to the crime.

The offender is to be sentenced for manslaughter. The jury found the offender guilty of a category of manslaughter by unlawful and dangerous act. The elements of that offence are that the punching of the deceased was the act of the offender which caused the death of the deceased. The act was deliberate, the act was both unlawful and dangerous. The finding of unlawful is consistent with a finding by the jury that the offender acted in excessive self defence of another.” (ROS 32.4)

“As I have already indicated the finding that the offender acted in self defence of another indicates that the offence is significantly less serious had that factor not been present. I find that the decision to intervene was spontaneous and took place where there was little opportunity to calmly reflect on the possible consequences in a dangerous and fluid situation.

There was accordingly, in my view, no relevant premeditation as any form of aggravating factor.

The offender had been placed under significant stress by the conduct of Wilmer in brandishing a blade at him at the entrance to the hotel. I take that provocation into account but only to a limited degree. It is relevant to comprehending [the applicant’s] state of heightened emotions at the time, however it was not a motivator for the events that followed.

The conduct involved a very brief episode of violence. The act was an isolated act of violence on his part and nothing he did afterwards suggests any identification or participation with the savage beatings that followed, perpetrated by other security guards. The Crown ultimately conceded that there was only one act of striking; after that he gradually withdrew.

The material in the offender’s case demonstrated that he is otherwise a gentle man who contributes to his community and is highly regarded. I accept the finding that he has low criminogenic risk; he is unlikely to re offend. The childhood record and the youthful record, in my view, are not of particular significance in the sentencing exercise although they do deny him a minor amount of leniency. The material demonstrates that he is otherwise a man essentially of good character. The material demonstrates that he had some empathy for the victim.

I accept the findings of Dr Lennings in respect of his genuine remorse and his genuine contrition, notwithstanding the plea that he entered in respect of the trial.

…

I have regard to the principle of general deterrence. The Crown made a submission that there should be incorporated in the sentence a factor to deter others, particularly security guards, from assaulting persons in the course of their employment. Such a factor could have been relevant absent the findings that I have made but in the circumstances it has no apparent relevance to the acts of the offender as I found them.” (ROS 35.3 – 36.8)

His Honour found special circumstances.

Crown submissions

131. The Crown submitted that this Court is entitled to intervene so as to increase the sentence imposed on the applicant because the sentence imposed was so disproportionate to the offending as to afford the foundation for concluding that in some way the sentencing discretion of the primary judge had miscarried. The Crown submitted that the punishment was manifestly inadequate because it simply failed to mark the seriousness of the offending. The Crown submitted that the factual findings by the sentencing judge were generous and from the resulting sentence, it was clear that each was accorded too much weight in the sentencing exercise.

132. The Crown submitted that very little weight should have been given to his Honour’s finding that the applicant had acted to defend another person. Implicitly the Crown submitted that it was not open to his Honour to find that this made the offence “significantly” less serious than if that factor had not been present.

133. The Crown submitted that the deceased was trying to de-escalate the confrontation. He was pursued by the security guards for no good reason beyond the perimeter of their club and after his brother had retreated. A total of seven security guards were involved. Thereafter, the deceased and his brother had not posed any real threat to any of the security guards, yet they were still pursued and the confrontation escalated by reason of the fact that they were pursued.

134. The Crown submitted that his Honour gave too much weight to his finding that the applicant’s decision to intervene was spontaneous and took place when there was little opportunity to reflect calmly and that there was no relevant premeditation as to any form of aggravating factor. The Crown submitted that rather than the attack being “spontaneous” and therefore sounding in mitigation, it arose from an intention to retaliate so that the applicant might revenge himself upon the deceased and those with him.

135. The Crown submitted that a sentence of 3 years was inadequate to a significant degree because it manifestly failed to mark by way of deterrence and denunciation the objective seriousness of the offence which took the life of another human being.

Consideration

136. A foundational difficulty for the Crown in this appeal is that it has not challenged (nor could it) his Honour’s factual findings and accordingly is bound by them. It is no answer to that circumstance to submit that his Honour gave excessive weight to these findings. Having made the findings which he did his Honour, as he was obliged to, gave effect to them. This approach by his Honour does not give rise to any ground of appeal, either patent or latent.

137. His Honour made a specific finding of fact based on his observation of the CCTV footage that immediately prior to the confrontation between the deceased and the applicant, the deceased had moved towards Hopoate with the paint scraper in his hand, and that this was the trigger for the intervention of the applicant. Accordingly, there was no basis for the Crown’s submission that his Honour erred in finding that an offence which occurred against that background was significantly less serious than if that factor had not been present. The existence of that factual background constituted an important ameliorating circumstance.

138. While the deceased initially tried to de-escalate the confrontation, it is apparent from his Honour’s findings that this was not the situation when the confrontation between him and the applicant occurred. By that stage, which was confirmed by Wilmer, the deceased had become very angry. He had armed himself with a paint scraper and was moving towards Hopoate with an apparent intention of involving himself in the struggle between him and Wilmer. It was at that point that the applicant intervened, albeit it with an excessive use of force. That the death of the deceased ensued was tragic and avoidable and the applicant has been convicted of the offence of manslaughter as a result thereof. Despite those consequences, the Crown remains bound by his Honour’s factual findings and in the absence of any challenge to those findings, it is not entitled to traverse them.

136. It is somewhat trite to observe that there is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. Moreover, a Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because it may have exercised its discretion in a manner different from that of the sentencing judge (Markarian v R [2005] HCA 25; 228 CLR 357 at [27]). As was also pointed out in Markarian (at [25]) “If specific error is not shown, is the result embodied in the order unreasonable or plainly unjust?” It is this last kind of error that is usually described in an offender’s appeal as “manifest excess” or in a prosecution appeal as “manifest inadequacy”.

137. In view of his Honour’s findings of fact, it cannot be said that this sentence was “unreasonable or plainly unjust”.

138. This ground of appeal has not been made out.

Conclusion

142. The orders which I propose are as follows:

1. In the conviction appeal, leave to appeal is granted but the appeal is dismissed.

2. In the Crown’s appeal against sentence, the appeal is dismissed.

143. R A HULME J: I agree with the reasons and conclusion of Hoeben CJ at CL in relation to ground 1 of the appeal against conviction.

144. As to ground 2, my own review of the evidence leads me to conclude that there was no scope (beyond speculation) to find that there was another security guard involved in the overall incident who was wearing a long-sleeved dark shirt as the applicant was.

145. In relation to the CCTV footage, the learned trial judge gave the jury a very firm direction about having an open mind; taking great care; scrutinising such material carefully; keeping firmly in mind the presumption of innocence; and not assuming to be true what one or the other party suggested could or could not be gleaned from the footage. His Honour also cautioned the jury to avoid being influenced by suggestion or what he said was sometimes referred to as "anchoring or wishful thinking". I have kept his Honour's sage advice in mind as I independently viewed the CCTV compilation footage, and particularly that from the Flight Centre, quite a number of times. It was particularly assisted by the techniques suggested by the Crown with the instructions in Exhibit BB. In the end I found myself in respectful agreement with Hoeben CJ at CL as to what the footage does and does not reveal.

146. Upon my assessment of the evidence overall I am satisfied that it was open to the jury to conclude beyond reasonable doubt that the charge of manslaughter had been established. I agree that leave to appeal against conviction should be granted but that the appeal be dismissed.

147. I also agree that the Crown appeal against sentence should be dismissed for the reasons given by Hoeben CJ at CL.

148. DAVIES J: I have read in draft the reasons of Hoeben CJ at CL. I agree with his Honour’s reasons and conclusions in relation to ground 1 of the conviction appeal and in relation to the Crown appeal against sentence.

149. In relation to ground 2 I am satisfied from my own review of the evidence that it was open to the jury to conclude beyond reasonable doubt that the applicant was guilty of manslaughter. In the first place, it may be accepted that there were differing accounts from the various witnesses concerning precisely the course of events as well as the description of those persons involved. Nevertheless, I am satisfied from a review of the CCTV evidence that it was reasonably open to the jury to conclude that the applicant was the only security guard dressed in a long sleeved black or dark shirt.

150. I am also satisfied from the evidence of Christopher Ball, and to a lesser extent from Ryan Richards, when taken together with the CCTV footage, especially that from the Flight Centre, that it was open to the jury to conclude beyond reasonable doubt that it was the applicant who punched the deceased on Darlinghurst Road. I agree that leave to appeal against conviction should be granted but that the appeal be dismissed.

151. I also agree with the reasons for Hoeben CJ at CL in relation to the Crown appeal against sentence.

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Decision last updated: 01 May 2015