May v Thomas [No 3]

[2015] WADC 59

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   MAY -v- THOMAS [No 3] [2015] WADC 59

CORAM:   SCHOOMBEE DCJ

HEARD:   18-20 MARCH 2013

DELIVERED          :   15 MAY 2015

FILE NO/S:   CIV 2394 of 2004

BETWEEN:   MARK CHRISTOPHER MAY

Plaintiff

AND

ANTHONY TREVOR THOMAS
Defendant

Catchwords:

Damages for personal injury - Assault - Whether self­defence in common law - Whether self­defence under Criminal Code (WA) - Whether defence against home invasion or defence of property against trespasser under Criminal Code (WA)

Legislation:

Criminal Code (WA) s 1, s 222, s 244, s 248, s 250, s 254
Criminal Code Act Compilation Act 1913 (WA) s 5

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff:     Mr T H Offer

Defendant:     Mr T H Percy QC with Ms J Moore

Solicitors:

Plaintiff:     Vertannes Georgiou

Defendant:     DLA Piper Australia

Case(s) referred to in judgment(s):

Boughey v The Queen (1986) 161 CLR 10

Community and Public Sector Union v Telstra Corporation Ltd (No 2) [2001] 112 FCR 324

De Bussche v Alt (1878) 8 Ch D 286

May v Thomas [2008] WASCA 215

Medlin v State Government Insurance Commission (1995) 182 CLR 1

R v Seaton [2010] EWCA Crim 1980; [2011] 1 All ER 932

The Nominal Defendant v Clements (1960) 104 CLR 476

Underhill v Sherwell [1997] NSWCA 325

West Australian Newspapers Ltd v Bridge (1979) 141 CLR 535

SCHOOMBEE DCJ: 

Background

1. This matter concerns a re‑trial of a claim for damages arising from personal injury brought by the plaintiff, Mr Mark May against the defendant, Mr Anthony Thomas.  The District Court previously dismissed Mr May's claim and Mr May appealed the decision.  The Court of Appeal held that the honourable trial judge had not sufficiently indicated what findings of fact had been made and how they applied to the various defences relied upon by Mr Thomas.  The matter was remitted to the District Court to be differently constituted.

2. On this occasion the court was considerably assisted by the Court of Appeal having spelt out exactly what matters had to be proven by Mr Thomas on a balance of probabilities in order to rely on any of the defences raised by him.  A re-trial is a rehearing as if the case had never been heard before: Community and Public Sector Union v Telstra CorporationLtd (No 2) [2001] 112 FCR 324, [11]. All findings of fact have to be made afresh, based on the evidence heard at the re-trial. The evidence led at the re‑trial may therefore result in different findings of fact than those made by the trial judge on the occasion of the first trial.

3. I have read those portions of the Court of Appeal decision in which the defences on which Mr Thomas relied were set out together with the matters that need to be proven in respect of each defence.  I have not read the transcript of the evidence given at the previous trial, nor the summary of the evidence or any findings made in that regard by the honourable trial judge, nor the portions of the Court of Appeal judgment that deal with the evidence or the findings made by the trial judge.  It is best that the evidence presented at the re‑trial be approached without any pre‑conceptions or prior knowledge of the facts.

4. All of the evidence at the re‑trial was presented afresh apart from the evidence of Associate Professor Robert Mead and Dr Kim Fong.  It was agreed between the parties that the evidence given by these two medical experts should stand as their evidence in the re‑trial and that the court should rely on the transcript in that regard.

The incident and Mr May's claim

1. Mr Mark May's claim is based on the allegation that he was unlawfully punched on the chin by Mr Thomas during an engagement party that both attended on the evening of 3 March 2001 at the house of Mr and Mrs Sadgrove.  Mr May says that he fell backwards onto his head as a result of the punch and received a fracture to the base of his skull.

2. Mr and Mrs Sadgrove's daughter, Rochelle, who is now known as Mrs Reeves, had become engaged to Mr Zeffron Reeves.  A party was held to celebrate the event.  Mr Thomas was a friend of the Sadgrove family, as well as of Mr Reeves and his family and was invited as a guest.  Ms Kate Chadbourne was a friend of Ms Reeves and had been invited to the party together with her then partner Mr May.

3. The party took place on the patio and lawned area behind Mr and Mrs Sadgrove's house.  Their house was the back unit on a battle-axe block.  The lawned area was right at the back of that block and one had to mount a few steps to reach the raised veranda or patio area behind the house.  Sliding doors led from the patio area into the kitchen.  On the right side of the house, as one faced the back of the block, was a long driveway leading past the side of Mr and Mrs Sadgrove's unit as well as the unit closest to the street.  In order to get to the street one had to leave the part of the verandah which extended beyond the right rear corner of the house, walk through a gate at the side of the house, then through a covered carport and down the driveway.  It appears from the photographs tendered that the driveway was constituted of large slabs of cement.

4. Around 11.00 pm that evening an incident occurred on the driveway during which Mr May says he was punched by Mr Thomas on the chin with the result that he fell backwards hitting his head on the driveway.  Mr Thomas denies that he punched Mr May and says he only extended his arm with an open hand to fend him off.  Mr Thomas states that he acted in self‑defence, as known in common law, as well as in self‑defence as provided for in the Criminal Code (WA). He also relies on defence against home invasion and defence of property against trespassers, as specified in the Criminal Code.

Issues in dispute and the burden of proof

1. It was not in dispute that under s 5 of the Criminal Code Act Compilation Act 1913 (WA) no civil action can be brought in respect of any act which is lawful pursuant to any provisions of the Criminal Code.  It is also well established that this section does not otherwise alter the common law, so that defences available at common law can also be relied upon to show that a particular act was not unlawful:  West Australian Newspapers Ltd v Bridge (1979) 141 CLR 535, 544 – 545.

2. It was agreed between the parties that Mr Thomas bore the burden of proving these defences on a balance of probabilities.  Both counsel agreed that Mr Thomas should lead his evidence first, because Mr Thomas had admitted in his defence that he had assaulted Mr May by extending his arm and fending him off.  Counsel for Mr May conceded that his client still bore the burden of proving the nature of the assault and causation.

3. In Underhill v Sherwell [1997] NSWCA 325, 5 – 6, Beazley JA, with whom Meagher JA and Sheller JA agreed, held that the burden was on a plaintiff to prove the nature of the assault, ie, the number of blows, by the defendant, while the defendant had the burden to prove that he believed, on reasonable grounds, that the action he took was necessary. In that case the defendant had relied on self‑defence in common law in defending a civil action.

4. The essential issues in the case were therefore what exactly Mr Thomas did to Mr May on the driveway and whether Mr Thomas' act was lawful because of any one of the defences that he had relied upon.  It was also in issue whether Mr Thomas' act caused the injuries that Mr May suffered, or whether they were caused by him losing his balance because he was highly intoxicated.

5. Counsel for Mr Thomas informed the court that prior to the earlier trial an application had been made to amend the defence to plead that the skull fracture suffered by Mr May was caused by a fall to the ground during attempts to move him to the car after the incident on the driveway.  Mr Thomas was initially granted leave to amend his defence, but on appeal the Court of Appeal held that Mr May would suffer irremediable prejudice if Mr Thomas was permitted to plead that the skull fracture was caused by other parties during the attempts to move Mr May to the car.  The prejudice arose because the limitation period for a claim by Mr May against such other parties had expired:  May v Thomas [2008] WASCA 215 [55].

6. This means that this court cannot rely on any matter relating to how Mr May was moved to the car when considering the issue of causation.  Counsel for Mr Thomas submitted that these matters were still relevant in relation to Mr May's intoxication and his ability to recall anything about the night in question.

7. It was not in dispute that Mr May was diagnosed the next morning at Fremantle Hospital with a fractured skull and a serious brain injury.  Unfortunately he was not taken to hospital that same evening as it was not realised that he had possibly suffered a serious injury.

8. It seems that Mr May has retained some disabilities from these injuries, although he was able to give evidence and is currently working as an orderly at a hospital.  No evidence was placed before this court regarding the medical treatment that Mr May received or the disabilities that he has suffered from temporarily or permanently.  The court was merely informed that damages had been agreed at the sum of $770,000.

9. It was also agreed between the parties that Mr Thomas's defence encompassed all of the defences which were discussed in the judgment by the Court of Appeal irrespective of whether these defences had been adequately pleaded or not.

The defences relied upon by Mr Thomas and the elements that need to be proven

1. The Court of Appeal quoted all the provisions setting out the defences under the Criminal Code relied upon by Mr Thomas, as they applied on 3 March 2001, and explained what Mr Thomas had to prove on a balance of probabilities in respect of each defence.  The Court of Appeal also specified what had to be proven in order to establish self‑defence and defence of another in common law.  It is appropriate to quote the relevant paragraphs from the judgment by the Court of Appeal:

   22.On behalf of Mr Thomas it was asserted that there were four sections of the Criminal Code which potentially had the effect of declaring his actions to be lawful. They were:

   244.Defence against home invasion

   (1)It is lawful for a person ('the occupant') who is in peaceable possession of a dwelling to use any force or do anything else that the occupant believes, on reasonable grounds, to be necessary -

   (a)to prevent a home invader from wrongfully entering the dwelling or an associated place;

   (b)to cause a home invader who is wrongfully in the dwelling or on or in an associated place to leave the dwelling or place;

   (c)to make effectual defence against violence used or threatened in relation to a person by a home invader who is -

   (i)attempting to wrongfully enter the dwelling or an associated place; or

   (ii)wrongfully in the dwelling or on or in an associated place;

   or

   (d)to prevent a home invader from committing, or make a home invader stop committing, an offence in the dwelling or on or in an associated place.

   (2)A person is a 'home invader' for the purposes of subsection (1) if the occupant believes, on reasonable grounds, that the person -

   (a)intends to commit an offence; or

   (b)is committing or has committed an offence,

   in the dwelling or on or in an associated place.

   (3)The authorisation conferred by subsection (1)(a), (b) or (d) extends to a person assisting the occupant or acting by the occupant's authority.

   (4)Section 250 applies to the authorisation conferred by subsection (1)(c).

   (5)This section has effect even if the conduct it authorises would not otherwise be authorised under this Chapter.

   (6)In this section -

   'associated place' means -

   (a)any place that is used exclusively in connection with, or for purposes ancillary to, the occupation of the dwelling; and

   (b)if the dwelling is one of 2 or more dwellings in one building or group of buildings, a place that occupants of the dwellings use in common with one another;

   'offence' means an offence in addition to any wrongful entry;

   'place' means any land, building or structure, or a part of any land, building or structure.

   ...

   248.Self-defence against unprovoked assault

   When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

   If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous bodily harm.

   ...

   250.Aiding in self-defence

   In any case in which it is lawful for any person to use force of any degree for the purpose of defending himself against an assault, it is lawful for any other person acting in good faith in his aid to use a like degree of force for the purpose of defending such first-mentioned person.

   ...

   254.Defence of property against trespassers:  Removal of disorderly persons

   (1)For the purposes of this section and section 255, the term 'place' means any land, building, structure, tent, or conveyance, or a part of any land, building, structure, tent, or conveyance.

   (2)It is lawful for a person ('the occupant') who is in peaceable possession of any place, or who is entitled to the control or management of any place, to use such force as is reasonably necessary -

   (a)to prevent a person from wrongfully entering the place;

   (b)to remove a person who wrongfully remains on or in the place; or

   (c)to remove a person behaving in a disorderly manner on or in the place;

   provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm to the person.

   (3)The authorisation conferred by subsection (2), as limited by the proviso to that subsection, extends to a person acting by the occupant's authority except that if that person's duties as an employee consist of or include any of the matters referred to in subsection (2)(a), (b) or (c) that person is not authorised to use force that is intended, or is likely, to cause bodily harm.

   23.Other provisions of the Criminal Code which were relevant to the operation of those sections include s 222, which defined 'assault' as follows:

   222.'Assault', definition of

   A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.

   The term 'applies force' includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.

   24.Further, at the relevant time, the expression 'grievous bodily harm' was defined in the Criminal Code to mean:

   [A]ny bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health. [Criminal Code s 1.]

   Self-defence against unprovoked assault - s 248

   25.In order to successful invoke the statutory defence provided by s 248 of the Criminal Code [Read with s 5 of the Criminal Code Act] it was necessary for Mr Thomas to establish that: [It was common ground that Mr Thomas bore the onus of proof of establishing both the statutory and common law defences (ts 4 ‑ 5.)]

   (a)Mr May unlawfully assaulted Mr Thomas;

   (b)Mr Thomas did not provoke that assault;

   (c)the force used by Mr Thomas was reasonably necessary to make an effectual defence against the assault; and

   (d)the force used by Mr Thomas was not intended, nor was it such as was likely, to cause death or grievous bodily harm or, if it was, the nature of Mr May's assault was such as to cause reasonable apprehension of death or grievous bodily harm, and Mr Thomas believed, on reasonable grounds, that he could not preserve himself from death or grievous bodily harm otherwise than by using the force which he used.

   Aiding in self-defence - s 250

   26.In order to invoke the defence provided by s 250 of the Criminal Code, on the basis that Mr Thomas's actions were justified in defence of Mr Reeves, it was necessary for Mr Thomas to establish that:

   (a)Mr May unlawfully assaulted Mr Reeves;

   (b)Mr Reeves did not provoke that assault;

   (c)the force used by Mr Thomas was reasonably necessary to make an effective defence against the assault upon Mr Reeves; and

   (d)the force used by Mr Thomas was not intended nor was it such as was likely to cause death or grievous bodily harm, or if it was, the nature of Mr May's assault upon Mr Reeves was such as to cause reasonable apprehension of death or grievous bodily harm, and that Mr Thomas believed, on reasonable grounds, that he could not preserve Mr Reeves from death or grievous bodily harm otherwise than by using the force which he used.

   27.The same basic structure applies to the statutory defence of self‑defence, and the statutory defence of defence of another.  In each case the first element of the defence requires that it be established that Mr May assaulted either Mr Thomas or Mr Reeves.  The second element of the defence requires that it be established that the assault was not provoked.  The third element requires it be established that the force used by Mr Thomas was reasonably necessary to make effective defence against the assault.  That question is to be assessed objectively and is not concerned with the state of mind of Mr Thomas. [Quartermaine v The State of Western Australia [2008] WASCA 22 [38] (Beech J, Pullin and Miller JJA agreeing.]

   28.The fourth element of each defence contains a number of sub‑elements, and merits detailed analysis.  The first sub-element is the proviso to the effect that the conduct is not lawful if it was intended, or such as was likely, to cause death or grievous bodily harm.  The first aspect of that proviso of the defence is subjective, and requires a finding of fact as to the actual intention of Mr Thomas.  The second aspect of that proviso of the defence requires an objective determination of the likely effect of the force which he used.  [For discussion of the meaning of 'likely', see R v Hung [2012] QCA 341; [2013] 2 Qd R 64; R v Trieu [2008] QCA 028.]

   29.In the circumstances of the present case, it could not be suggested that Mr Thomas intended to cause the death of Mr May, or that the force which he used was likely to have that consequence.  Accordingly, that aspect of the proviso can be excluded from further consideration.  However, Mr May asserted that Mr Thomas punched him in the head with force on a concrete driveway.  Regrettably, serious and sometimes fatal injuries can be sustained when a single blow to the head is applied with force to a person standing on a hard surface.  Convictions for unlawfully causing grievous bodily harm have been obtained in similar circumstances, [R v Dietz [2009] QCA 392; R v Green [2013] QCA 24 [16]] although much will depend upon the particular circumstances. [See for example Hooper v The Queen [2003] WASCA 179 – a case in which the victim was struck once to the face causing him to fall directly backwards, hit his head on the brick driveway and died. In the first trial the accused was convicted of grievous bodily harm but following a re-trial, was acquitted on that count, apparently on the basis of accident, but convicted of assault occasioning bodily harm.] In the circumstances of this case there were live issues as to whether:

   (a)Mr Thomas intended to cause Mr May bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health; or

   (b)Mr Thomas used force of a kind likely to cause any bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health.

   30.If it was found that either Mr Thomas intended to cause grievous bodily harm to Mr May, or that he used force which was likely to have that effect, the statutory defences can nevertheless be invoked if Mr Thomas establishes a number of things.

   31.First, it must be established that the nature of Mr May's assault upon Mr Thomas or Mr Reeves was such as to cause a reasonable apprehension of grievous bodily harm.  That issue has to be assessed objectively by reference to the nature of the assault.

   32.Second, it must be established that Mr Thomas believed that he could not preserve himself or Mr Reeves from grievous bodily harm otherwise than by using the force which he used.  This issue is to be assessed subjectively - that is by reference to Mr Thomas' actual state of mind.

   33.Third, it must be established that Mr Thomas had reasonable grounds for that belief.  This issue is to be reached both subjectively, by reference to the circumstances as Mr Thomas believed them to be, and objectively by reference to the reasonableness of the belief in the circumstances that Mr Thomas believed to exist.

   34.Analysed in this way, in the circumstances of this case, it can be seen that the issue which I described as the fourth element of the defences provided by s 248 and s 250 of the Criminal Code requires determination of the following specific issues:

   (a)did Mr Thomas intend to cause grievous bodily harm to Mr May?, or

   (b)was the force used by Mr Thomas likely to cause grievous bodily harm to Mr May?;

   and if either of those questions is answered in the affirmative;

   (c)was the nature of Mr May's assault upon Mr Thomas or Mr Reeves such as to cause a reasonable apprehension of grievous bodily harm?; and, if so

   (d)did Mr Thomas believe that he could not preserve himself or Mr Reeves from grievous bodily harm other than by using the force which he used?; and, if so

   (e)did Mr Thomas have reasonable grounds for that belief?

   Defence against home invasion - s 244

   35.In order to invoke the defence provided by s 244 of the Criminal Code relating to a defence against home invasion, it was necessary for Mr Thomas to establish that:

   (a)Mr Thomas was authorised by Mr or Mrs Sadgrove to prevent Mr May from re-entering their property;

   (b)Mr Thomas believed that Mr May either had committed or was committing an offence, or intended to commit an offence, in addition to wrongful entry, on the property occupied by Mr and Mrs Sadgrove; and, if so

   (c)Mr Thomas had reasonable grounds for that belief; and

   (d)Mr Thomas believed that the force which he used was necessary:

   (i)to prevent Mr May from wrongfully entering Mr and Mrs Sadgrove's property; or

   (ii)to cause Mr May, who was wrongfully on Mr and Mrs Sadgrove's property, to leave the property; or

   (iii)to make effectual defence against violence used or threatened by Mr May who was attempting wrongfully to enter Mr and Mrs Sadgrove's property or was wrongfully on their property; or

   (iv)to prevent Mr May from committing, or to make Mr May stop committing, an offence on Mr and Mrs Sadgrove's property; and, if so

   (e)Mr Thomas had reasonable grounds for that belief.

   Defence of property against trespassers: removal of disorderly persons - s 254

   36.In order to successfully invoke the statutory defence provided by s 254 of the Criminal Code, it was necessary for Mr Thomas to establish that:

   (a)he was authorised by Mr or Mrs Sadgrove to prevent Mr May from wrongfully entering their property;

   (b)Mr Thomas used only such force as was reasonably necessary to prevent Mr May from wrongfully entering the property;

   (c)Mr Thomas did not intend to cause grievous bodily harm to Mr May; and

   (d)the force used by Mr Thomas was not such as was likely to cause grievous bodily harm to Mr May.

   The common law defences

   37.Self-defence at common law was succinctly described by Wilson, Dawson and Toohey JJ:

   [T]he law of self-defence requires no set words or formula.  The question to be asked in the end is quite simple.  It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did.  [Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645, 661.]

   38.The defence was explained in the civil context by the Court of Appeal of Victoria:

   There are two elements to this test.  In the context of a civil proceeding, the defendant must have believed at the time when he committed the relevant act that what he was doing was necessary; and that belief must have been based on reasonable grounds.  The second element does not involve a test about what a hypothetical reasonable person might have believed in the circumstances, but rather whether the defendant had reasonable grounds for his belief, in the circumstances as he perceived them to be. 

   In determining whether the defendant believed that the force used was necessary, consideration should be given to the fact that a person who has reacted instantly to imminent danger cannot be expected to weigh precisely the exact measure of self defensive action which is required. [Watkins v Victoria [2010] VSCA 138 [71] - [72] (Ashley JA & Beach AJA, Mandie JA agreeing.]

   39.So, in order to establish self-defence at common law, it was necessary for Mr Thomas to establish many of the elements which were relevant to the statutory defences upon which he relied.  In the circumstances of this case, the defence would be successfully invoked if Mr Thomas establishes that:

   (a)Mr Thomas believed that Mr May was about to assault him;

   (b)Mr Thomas believed that the force which he used was necessary in order to defend himself from Mr May's attack; and

   (c)Mr Thomas had reasonable grounds for those beliefs, in the circumstances as he perceived them to be.

   40.As with the statutory defence, the last element of the common law defence has components which are both subjective and objective.  The element is subjective, in the sense that it turns upon the circumstances as Mr Thomas perceived them to be, and is objective in the sense that the grounds for belief must be reasonable.

   41.The common law position with respect to defence of others is less clear.  However, in R v Portelli[R v Portelli [2004] VSCA 178; (2004) 10 VR 259] the Court of Appeal of Victoria held that despite a degree of uncertainty in the previous authorities, it should be concluded that the same principles should be applied to defence of another at common law as apply to self-defence. A similar approach has been taken in the Court of Appeal of New Zealand [Leason v Attorney-General [2013] NZCA 509; [2014] 2 NZLR 224 [52]] and in the Supreme Court of the Australian Capital Territory. [Gibbs v Willis [2013] ACTSC 26 [137.]] I propose to take the same approach. It follows that in order to successfully invoke the common law defence of defending another, it is necessary for Mr Thomas to establish that:

   (a)he believed that Mr May was about to assault Mr Reeves;

   (b)he believed that the force which he used was necessary to defend Mr Reeves from Mr May's attack; and

   (c)Mr Thomas had reasonable grounds for those beliefs, in the circumstances as he perceived them to be.

Mr Anthony Thomas

1. I shall next deal with the evidence given by the various witnesses.

2. Mr Thomas told the court that he had known the Sadgrove and Reeves families through his rugby connections for some time.  He had been a player for the Cottesloe Rugby Club for about 10 years and had remained a social member.  He had played rugby at State level for Western Australia.  He had also been an amateur boxer at national level in the United Kingdom when he was aged between 8 and 19 years.  He had partaken in international boxing competitions. 

3. Mr Thomas said he was approximately 6 feet tall and weighed about 87 kg at the time.  He had arrived at the engagement party at about 7.00 pm.  He estimated that he had consumed only four beers by around 11.00 pm, as he was not a great drinker.

4. Mr Thomas gave evidence that he was introduced to Mr May as the partner of Ms Kate Chadbourne early in the evening.  He only made small talk with Mr May and had no reason to dislike him.  They did not have any further contact during the evening and there was no animosity between them.

5. Mr Thomas told the court that sometime between 11.00 am and 12.00 pm, after having been served a hot drink in the kitchen, he walked outside onto the rear patio.  He saw Ms Chadbourne on the patio being very upset and crying.  She was being comforted by other young women, including Ms Rochelle Reeves.  Ms Reeves was also crying.  She asked Mr Thomas to go to the front of the house and check whether her fiancé, Mr Zeffron Reeves, was okay, as there was a bit of trouble out at the front.  Mr Thomas told her he would go and check and walked through the gate and down the driveway.

6. Mr Thomas gave evidence that he saw Mr Reeves and Mr May on the driveway talking to each other in raised voices and exchanging abuse.  They were facing each other over a distance of about a metre or a metre and a half.  Mr Reeves said words to the effect 'Go away, you are not welcome, you are asked to leave the property, fuck off'.  Mr May replied in words to the effect of 'Get out of my fucking way I'm going to the party, I'm going to get her'.

7. Mr Thomas told the court that Mr May was very annoyed and agitated and screamed out for Ms Kate Chadbourne.  He said words to the effect of 'Tell that bitch to come out here or I'll kill her.  She will get what she got last time'.

8. Mr Thomas said he approached the two men and told Mr May to leave, as he was not welcome.  Mr Thomas reported that Mr May's demeanour was very aggressive and threatening, he was flailing his arms about while shouting his demands.  Mr Thomas gave evidence that Mr May then raised both hands to about shoulder height with fists clenched.  Mr Thomas said Mr May suddenly lunged towards him and Mr Reeves who was standing next to him.  Mr Thomas stated he feared that Mr May would attack him or Mr Reeves, as it looked like Mr May intended to re-enter the property at all cost.  He feared Mr May would hit him or Mr Reeves in a violent fashion.  Mr Thomas stated that he did not know whether Mr May was intoxicated at that stage, although he agreed that he had heard Mr May slur some of his words when talking on the driveway.

9. Mr Thomas gave evidence that Mr May was considerably taller, broader and stronger than either he or Mr Reeves.  Mr Thomas said he instinctively reached out with his right arm outstretched and palm facing upwards to fend off Mr May when he lunged towards him.  Mr Thomas conceded he could not say exactly where his hand had touched Mr May's body and that it could have hit his face when his hand bounced up from Mr May's chest.  He said this would have been on secondary impact as Mr May was very tall.

10. Mr Thomas gave evidence that his hand stopped Mr May's momentum and Mr May staggered back two or three steps, did a little jiggle and fell onto his backside.  He tried to lift himself up by pushing his hands down on the ground, but fell over backwards onto his back.

11. Mr Reeves came to Mr May's aid and tried to help him to get up.  Mr Thomas gave evidence that he realised at that stage that Mr May must have been very intoxicated because of the manner in which he had staggered back and that he was no longer a threat.  Mr Thomas said he did not want to be involved any further and walked back towards the house.  Mr May was not unconscious when he left, but was still grumbling and moaning.

12. Mr Thomas denied that he had punched Mr May in the face or had punched him at all.

13. Mr Thomas gave evidence that he did not see Ms Chadbourne near them when the confrontation took place.  As he walked back towards the house, he passed two people who came out of the driveway, near the carport.  They were talking to each other.  He could not recall who they were.  Mr Thomas said the lighting on the driveway was poor.  It was dark.  He could not say whether any of the lights outside the Sadgroves' property were on or not.

14. Mr Thomas had taken part in a video‑recorded interview with the police approximately three weeks after the incident.  It was put to him in cross‑examination that he had never told the police that when Mr May lunged at him he thought that Mr May was about to throw a punch or to attack him and Mr Reeves in some fashion.  Counsel for Mr May put to Mr Thomas that all he had said to the police was that he had no idea why Mr May was coming in their direction and that he had thought that Mr May was trying to get past them to find his partner, Ms Chadbourne.

15. However, what was put to Mr Thomas were selective parts of his answers to the police where he did say that he did not know what Mr May was going to do and whether he was just trying to get past them.  If the full answer given on each occasion by Mr Thomas to the police is taken into account, it is clear that he said he was also concerned about Mr May coming at him and Mr Reeves and that he might throw punches.  Mr Thomas told the police:  'I don't know if he was coming at us throwing punches, his arms were in the air.  He was shouting and – more of he was just trying to get past us, I dunno, I couldn't tell you, it was just a reflex action of just sticking your arm up and pushing him away.'

16. The parties agreed that the full interview of Mr Thomas by the police should be played to the court, so that the court could assess the whole context in which answers were given that were relied upon by counsel for Mr May as being statements inconsistent with the evidence that Mr Thomas gave in court.  The court made a ruling that the record of interview could be played for that purpose, but that the whole of it was not admissible in so far as it consisted of prior consistent statements that were not relevant to any inconsistencies put to Mr Thomas.

17. Counsel for Mr May further suggested to Mr Thomas in cross‑examination that he only started to rely on self-defence years after the institution of the action and that he had never said before that he had been fearful of an attack.  Mr Thomas replied that he had relied on self‑defence from day one.

18. In the interview with the police which took place approximately three weeks after the incident, Mr Thomas told the police: 'It just seemed like all of a sudden he was there in your face and I was trying to keep away'… … 'He's just come toward us both – his arms in the air like he was just sort of rushing, trying to make a rush to get past us or through us, I don't know … I just saw him coming, stuck a hand up … and he's run into it.  Sort of to push him away, just like that.'

19. When asked again by the police why Mr Thomas put his arm up, Mr Thomas replied, 'Self‑defence, that's all.  To sort of keep him away.  I don't know, maybe he might have thrown a punch at me.  I just didn't want to … I wanted to keep him at arm's length'.  Mr Thomas also told the police on more than one occasion that Mr May was angry, aggressive and threatening at that time.

20. It is correct that Mr Thomas repeatedly said to the police he did not know exactly what Mr May intended to do and told the police it was possible that Mr May just wanted to push past the two of them.  But Mr Thomas also indicated that he thought that Mr May might throw a punch and that he wanted to keep him at arm's length.

21. In my view there is no inconsistency between what Mr Thomas told the police and what he said in court with regard to whether he was concerned that Mr May might punch or otherwise assault him or Mr Reeves.  On the contrary, what Mr Thomas told the police is very much consistent with what he said in court.  It is also not correct to say that Mr Thomas had not raised circumstances amounting to self-defence when he first spoke to the police.  In fact he used the very word.

22. It is understandable that Mr Thomas did not know exactly what Mr May intended to do.  However, he repeatedly said in court, as well as to the police, that Mr May had been aggressive, angry and threatening.  Even if Mr Thomas thought that Mr May was only going to force his way through the two of them to find Ms Chadbourne, that in itself was very likely to have resulted in an assault on one or both of them, even if it was just by forceful shouldering or shoving.

23. When Mr Thomas explained in court how Mr May had rushed at him and Mr Reeves he demonstrated that Mr May had held his hands up just above his shoulders with his fists clenched.  It was put to Mr Thomas that during the interview with the police he had demonstrated that Mr May had his hands up in a similar position but with open hands.  However, at the point when Mr Thomas held up both arms during the interview to illustrate what Mr May was doing, he was explaining what was happening when he arrived on the scene.  Mr Thomas told the police:  'As I came up to them I could see what was really going on – once you got close … .  How aggressive and pushy he was and he was really sort of coming onto Zeff.  Zeff was having trouble trying to holding him back.  And the arms were flailing around and everything and all that sort of stuff.'

24. It was when Mr Thomas was talking about the flailing arms that he briefly raised both arms in the air with open palms.  Immediately thereafter he used one raised arm to point at something in front of him.  I do not agree with counsel for Mr May that Mr Thomas was demonstrating at that stage how Mr May held his arms when he rushed at him and Mr Reeves.

25. Shortly afterwards Mr Thomas was describing in the interview how Mr May rushed at them.  He told the police: 'He went to make a rush.  I think he went to make a rush to get past us.  So his arms were flailing.  He had arms raised in the air, he was still shouting and screaming.'

26. At the point when Mr Thomas used the phrase 'his arms were flailing' he briefly raised his right hand to just above shoulder height with a floppy wrist.  It does not appear that Mr Thomas was trying to illustrate how Mr May had held both arms in the air when he rushed at them.  He was not asked by the police officers to demonstrate what stance Mr May had taken when he rushed at them.

27. I do not agree with counsel for Mr May that there is an inconsistency between what Mr Thomas said in court with regard to how Mr May rushed at them and what he told the police.  It may be the case that the evidence in court was more detailed to bring out exactly how aggressive Mr May had looked when he rushed at them and to emphasise that Mr Thomas was fearful of being assaulted.  But this was in response to detailed questions asked by Mr Thomas' counsel in evidence in chief.

28. Mr Thomas was also questioned at length about the fact that his defence in its original form which was filed in 2005 did not allege any self‑defence or defence of property but merely contained a denial that he had assaulted Mr May.  Mr Thomas replied that he had told his lawyers from the beginning that he had acted in self‑defence and defence of property, but had left it to them how they were to phrase the pleadings.

29. It was further put to Mr Thomas that in a witness statement prepared on his behalf and by order of a registrar, dated 15 February 2007, he had stated: 'I instinctively raised my arm to protect my face from the blow of Mr Mark May. Mr May then stumbled backwards.'  Counsel for Mr May put to Mr Thomas that the statement said nothing about contact occurring between him and Mr May.  Mr Thomas replied that this was implied in him saying that Mr May then stumbled backwards.

30. It was also put to Mr Thomas that the statement referred to him raising an arm to protect his face, whereas his current case was that he fended off Mr May to protect the whole of his body.  Mr Thomas answered that the reference to his face might have arisen from his wording, or his lawyers' interpretation.

31. Counsel for Mr May also put to Mr Thomas that in a minute of proposed amended statement of claim, dated September 2007, it was pleaded that he had raised his arms to protect his face and had made contact with Mr May, using no more force than was reasonably necessary.  Counsel suggested to Mr Thomas that this statement had referred to both arms and, for the first time, to contact with Mr May.  Mr Thomas replied that he had only raised one arm and that the difference to the earlier statement merely lay in the letter 's', implying that this could have been a mistake.

32. Counsel for Mr May referred Mr Thomas to a further defence, dated 31 October 2008, in which it was pleaded that Mr May had rushed at Mr Thomas with his fists raised and had collided with Mr Thomas who, in order to protect himself and using no more force than was reasonably necessary, fended off Mr May.  Counsel put to Mr Thomas that this was the first time that his current version of events had been correctly stated in the pleadings.

33. It was further put to Mr Thomas that in a further amended defence, which had been prepared and filed by his present solicitors in 2010, it was pleaded that he had raised his left arm, whereas his evidence had been that it was his right arm.  The reference to the left arm had been maintained in subsequent defences filed and was still in the defence before the court.  Mr Thomas replied that he had always instructed his solicitors that it had been his right arm and that this could have been a mistake made by his lawyers.  Mr Thomas acknowledged that he should have read the pleadings more carefully.  The current defence was then amended to state that it was his right arm.

34. Mr Thomas gave evidence that he had dealt with many different lawyers at the firm which had first represented him.  It was only when he changed solicitors to his current solicitors that they fully pleaded self‑defence and defence of property, which he said he had relied upon from the beginning.

35. I am of the view that not much value can be placed on the manner in which Mr Thomas' defence was formulated by two different law firms over a period of time.  It is not unusual to see pleadings drawn with little attention to detail and lack of skill in properly setting out the relevant matters.  The allegation put to Mr Thomas that he had changed his defence and instructions to his solicitors as time went on and had only relatively recently come up with the notion of self‑defence and defence of property is refuted by what he told the police three weeks after the incident.  During the interview Mr Thomas used the specific word 'self‑defence' at least twice.  Mr Thomas can also be seen on a number of occasions during the interview to be raising his right arm when he illustrated to the police how he fended off Mr May.

36. Counsel for Mr May suggested that Mr Thomas may have forgotten what he told the police, as he was not given a copy of the DVD or a transcript of the interview at the time, and that later, when the civil action arose, he instructed his solicitors that he had raised both arms, or the left arm and only to protect his face.  Mr Thomas denied that he had changed his version of events or his instructions to his lawyers at any time.  He said the discrepancies in the pleadings arose because his lawyers made mistakes or he had not put it that clearly or not read the pleadings with as much care as he should have.

37. I am of the view that the discrepancies between the various pleadings are not material enough to indicate that Mr Thomas changed his version of events.  The variance between one arm and both arms, and the left and the right, can easily slip in by mistake.  The difference between saying that Mr Thomas raised an arm to protect his face and stating that he raised an arm to fend off Mr May is more substantial, but I am not convinced that this necessarily indicates that Mr Thomas changed his version of events or that this reflects badly on Mr Thomas' credibility.

38. Counsel for Mr May suggested that Mr Thomas should have called his previous solicitor as a witness to support Mr Thomas' evidence that he had never changed his instructions and that any discrepancy between his current version of events and the pleadings arose from mistakes by his solicitors or misunderstandings between him and his solicitors.  Counsel for Mr Thomas submitted that this was a collateral issue which only went to Mr Thomas' credibility and that evidence to impugn Mr Thomas' explanation or to support it was not admissible.

39. Evidence by Mr Thomas' solicitor may have been admissible (if Mr Thomas chose to waive his right to legal professional privilege), because it would have been evidence relevant to the allegation that Mr Thomas had only recently invented a version of events which amounted to self-defence or defence of another:  The Nominal Defendant v Clements (1960) 104 CLR 476, 479; R v  Seaton [2010] EWCA Crim 1980; [2011] 1 All ER 932 [43c]. However, I doubt that the evidence by a prior solicitor or solicitors who would have had to remember detailed instructions given many years ago and may have had reason to justify his or her own attendance to detail and accuracy in drafting pleadings, would have been very helpful. It would potentially have raised all sorts of collateral issues. Counsel for Mr May stressed that he did not ask the court to make too much of Mr Thomas' failure to call his previous solicitors, and I will not do so. It must be remembered that Mr Thomas told the police three weeks after the incident that he had acted in self‑defence and had used his right arm to fend off Mr May.

40. Counsel for Mr May suggested to Mr Thomas that he had embellished his case in court by, amongst other things, saying that Mr May had threatened to kill Ms Kate Chadbourne during the altercation on the driveway.  Counsel pointed out to Mr Thomas that he had not said anything about a threat to kill during the interview with the police.  Counsel reminded Mr Thomas all he had told the police was that Mr May had threatened Kate because she would not leave with him.  He told the police that Mr May had said: 'If she doesn't come out now she will get what she fucking deserves.  And she'll get what she got last time.'

41. It is apparent that Mr Thomas told the police that Mr May had threatened to do some kind of harm to Ms Chadbourne, but did not say at that time that Mr May had threatened to kill her.  This is a minor discrepancy.

42. Mr Thomas gave evidence that after he had pushed Mr May away, Mr May fell on his backside, tried to lift himself up and fell onto his back.  Counsel for Mr May put to Mr Thomas that he had not told the police that Mr May had first fallen on his backside.  Counsel reminded Mr Thomas that he had told the police 'He staggered backwards … a couple of paces, did a shuffle sort of thing.  And then down bang on his back'.  Mr Thomas agreed that he said this to the police, but replied that he had also referred to Mr May falling on 'his arse'.  At the beginning of the interview Mr Thomas told the police: 'Next thing I know he's stumbled back and fallen on his arse.'

43. I found Mr Thomas to be a forthright and very confident witness.  He never hesitated in answering any question or took time to consider from what angle cross‑examining counsel might be coming.  He readily made concessions, for example, that in rugby one would use a fending-off manoeuvre to avoid contact, but not to avoid a punch.  He readily conceded that he had seen the various pleadings which did not properly reflect his defence and said that he was partly to blame for not having read them with more attention.  He conceded that in pushing Mr May away, his hand may have moved up to touch Mr May on the face, but strongly denied that he had punched him.

1. Counsel for Mr May placed some emphasis on the fact that Mr Thomas had been a champion amateur boxer and a rugby player in an attacking position as a flanker for many years.  However, the mere fact that somebody knows how to swing a good punch and is experienced at that, does not in itself mean that a person did so on a particular occasion.  As Mr Thomas stated, people who are taught contact sports at a high level, are also taught discipline and the risks of forceful contact.

2. The fact that Mr Thomas was experienced at pushing people away who tried to tackle him during a rugby game means that he probably knew how to do this effectively.  However, this does not necessarily result in a conclusion that Mr Thomas pushed Mr May out of vindictiveness or with excessive force.  Mr Thomas acknowledged that he could have stepped out of the way, but said putting out his hand was an instinctive response.  The fact that Mr May staggered backwards a few steps and did not fall straight backwards as a person might do after receiving a knock-out blow fits in with a push to fend off Mr May.

3. Mr Thomas denied being aggressive.  He said that he did not know that Mr May had behaved obnoxiously earlier that evening and had no reason to attack him. This is supported by the fact that Mr Thomas left the scene as soon as he saw that Mr May was badly intoxicated and unlikely to cause any further problems.  If Mr Thomas had felt vindictive, he is likely to have remained at the scene, even if it was only to give Mr May a piece of his mind.

4. I have no difficulty in accepting Mr Thomas' evidence in all material respects.

Mr Raymond Sadgrove

1. Mr Sadgrove gave evidence that at around midnight he was sitting on the lawn next to the steps leading up to the patio together with a group of older guests at the party.  The tall gentleman who had earlier been pointed out to him by his daughter as being Ms Kate Chadbourne's partner came to join them.  He interrupted the conversation by saying something to the effect 'All you fucking league players are the same'.  Mr Sadgrove told the court that the tall gentleman, who he later learned was Mr May, was slurring his words and spoke quite loudly.  Mr Sadgrove replied that they were not rugby league people but rugby union people.  To this Mr May replied 'They are just the fucking same too'.

2. Mr Sadgrove gave evidence that he asked Mr May not to swear in front of the ladies.  Mr May then said words to the effect, 'All you fucking Cottesloe people live in fucking castles'.  Mr Sadgrove told the court he again asked Mr May to stop swearing or he would have to ask him to leave.  Mr Sadgrove stood up and Mr May also got to his feet.  Mr Sadgrove explained that he was only 5 foot 6 inches tall and Mr May was towering above him.  At that stage Mr Zeffron Reeves came across from where he had been standing with a group of the younger people at the party.  He asked whether there was any problem and Mr Sadgrove explained that he had asked Mr May to leave.

3. Mr Sadgrove gave evidence that Mr Reeves then ushered Mr May up the steps to the patio and out towards the gate.  Mr Sadgrove said his daughter Rochelle and Mr Thomas joined Mr Reeves in escorting Mr May away from the party.  Mr Sadgrove gave evidence that he did not know where Ms Kate Chadbourne was at that time.  In cross‑examination, Mr Sadgrove conceded that Ms Chadbourne could have been part of the group that left with Mr May.

4. Mr Sadgrove gave evidence that ten to 15 minutes later a friend of Ms Rochelle Sadgrove, Ms Sandra Misson, approached Mr Sadgrove's group and reported that Mr May had returned.  She said Mr Reeves wanted to see Mr Sadgrove at the front of the house.  Mr Sadgrove went to the front with Ms Misson.  A group of people were standing on the driveway.  The group included Mr Reeves, Mr Thomas, Ms Reeves and Ms Chadbourne.

5. Mr May was sitting on the driveway with his knees up under his chest. Mr Sadgrove said he did not see Mr May's face as he was facing away from him.  Someone asked whether a towel was needed because Mr May's forehead was bleeding.  There was also talk about whether Mr May needed an ambulance and someone said it was not necessary.  Mr Sadgrove suggested to his daughter that Ms Chadbourne's parents, who lived nearby, could take Mr May home.  Ms Reeves then left to ring Ms Chadbourne's parents.

6. Mr Sadgrove said that there was adequate lighting in the area where he found Mr May in a sitting position.  There was a security light at the front of their unit just before the carport which had been set to staying on permanently that night.  The range of the security light was only approximately 8 m, whereas Mr May was sitting approximately 20 m away from the light.  There was also a security light at the entrance to the front unit.  Mr Sadgrove said at the time of the incident the trees at the front of that unit were much smaller and one would have been able to see the front of that unit and this particular light from the position where Mr May was sitting.

7. Mr Sadgrove gave evidence that he returned to the party and later saw Mr Thomas again at the party.  Mr Sadgrove said he did not see the group of people who had left with Mr May returning to the party prior to him being asked by Ms Sandra Misson to come to the front of the house.

8. I accept Mr Sadgrove's evidence in all material respects except on the issue as to whether Mr Thomas left with Mr Reeves and Ms Reeves to escort Mr May away from the party.  I prefer Mr Thomas' evidence in this regard.  Mr Thomas said that he did not assist in escorting Mr May out and only went to the driveway when Ms Reeves asked him to assist Mr Reeves.  Mr Sadgrove may easily be mistaken about this as he was sitting on the lawn below the patio area.  Ms Reeves also denied that Mr Thomas had followed her and Mr Reeves when they escorted Mr May from the premises.  She gave evidence that Mr Thomas may have mounted the steps to the patio, but no one came through the gate with them.

Mr Zeffron Reeves

1. Mr Reeves gave evidence that he met Mr May sometime during the middle of the evening.  They had a brief conversation which Mr Reeves considered to be inappropriate to the occasion.  He said Mr May was talking to him like one might talk to one's friends at a pub.  Mr May said words to the effect that the hosts looked like they were rich and that they should drink all their 'piss'.  Mr Reeves gave evidence that Mr May already looked visibly intoxicated by about 9.00 pm.

2. Mr Reeves said at a later stage he saw Mr Sadgrove seated with a group of people.  He looked agitated.  Mr Sadgrove came up to him and told him that Mr May had been speaking abusively and inappropriately to the group of people.  Mr Sadgrove asked Mr Reeves to tell Mr May to leave.  Mr Reeves gave evidence that he walked towards Mr May and asked him to leave.  Mr May became agitated. Mr Reeves said his partner, Ms Reeves then coerced Mr May into leaving by telling him that Ms Kate Chadbourne was already outside.

3. Mr Reeves gave evidence that he and Ms Reeves escorted Mr May out through the side gate and onto the driveway.  Mr May walked of his own accord, but did not want to leave without Ms Chadbourne.  Mr Reeves said he had to speak to him strongly.  Ms Reeves kept telling Mr May that Kate was already outside.

4. Mr Reeves gave evidence that he did not know where Ms Kate Chadbourne was at that time, but he did not see her following them.

5. Mr May turned left into the street at the end of the driveway and Mr Reeves walked back to the party, thinking that Mr May had left.  However, when Mr Reeves was about halfway back up the driveway Mr May reappeared.  He was yelling abuse at Mr Reeves, telling him to let him in and asking where Kate was in an agitated manner.

6. Mr Reeves asked Ms Reeves to get assistance.  Mr Reeves gave evidence that he was fearful at that stage because Mr May kept yelling abuse.  He said words to the effect 'Where the fuck is Kate?'  Mr Reeves told the court that he and Ms Reeves and Mr May were the only people on the driveway at that time.

7. Mr Reeves said four or five minutes later Mr Thomas arrived and stood to his right with both of them facing Mr May and the street.  Mr May kept saying he was going to go back to the house to get Kate.  Mr Reeves admitted that he told Mr May to 'fuck off'.

8. Mr Reeves gave evidence that he thought Mr May was serious and was worried that Mr May would hurt him in the process of forcing his way back in.  Mr Reeves conceded that he was also 6 foot 2 inches tall and weighed approximately 106 kg at the time.  He said that he had been playing rugby for a long time and had done boxing as part of fitness training.  He agreed that knew how to defend himself.

9. Nevertheless, Mr Reeves said he felt threatened by Mr May and was scared.  This is why he called for back‑up.  Mr Reeves said he had consumed approximately six beers that night, but did not feel very affected by the alcohol because he had been drinking it over approximately six hours.

10. When Mr Thomas arrived Mr Reeves explained to him that he needed a hand because Mr May was trying to get back into the premises and it looked like he was going to force his way through.  Mr Reeves said he and Mr Thomas were standing very close to each other, shoulder to shoulder.  Mr Reeves gave evidence that Mr Thomas also asked Mr May to leave.  Mr May made some reply, but Mr Reeves could not recall exactly what he said.  Mr Reeves said he felt intimidated, as Mr May was getting more and more aggressive.

11. Mr Reeves gave evidence that Mr May then approached him and Mr Thomas.  He looked like he was going to throw a punch as he had raised his right fist.  He was approximately 1 metre away from them at that stage.  Mr Reeves said he was worried because he did not want to get hurt.

12. Mr Reeves gave evidence that Mr Thomas put his hands up as Mr May approached.  He demonstrated in court that Mr Thomas extended both his arms just above shoulder height with the palms facing up and forward.  Mr Reeves said that he did not see Mr Thomas' hands in the shape of a fist and did not see any punch.

13. Mr Reeves told the court that Mr Thomas' arms made contact in the region of Mr May's chest.  He said he could not say whether Mr Thomas' hands touched Mr May's arms or chest, but it was not his head or his groin.  Mr Reeves gave evidence that Mr May then fell directly backwards.  It did not appear that he tried to break his fall.  Everything happened very quickly.  Mr May fell onto his backside, with his legs extended in front of him.  He tried once or twice to get onto his haunches in order to stand up but fell backwards each time.

14. Mr Reeves agreed that Mr May's initial fall backwards was likely to have been caused by the contact with Mr Thomas and by Mr May's imbalance.  He could not say whether Mr May hit his head on the ground as part of the initial fall.  When it was put to Mr Reeves that he had told the police in a statement in March 2001 that Mr May had fallen flat on his back and had hit his head on the driveway after making contact with Mr Thomas, Mr Reeves agreed that what he had said to the police was likely to be more accurate, as it was closer to the event.

15. Mr Reeves gave evidence that he heard Mr May's head hit the ground when he fell backwards after he had tried to get up.  At that stage Mr May made a moaning or groaning sound as if he was in pain.

16. Mr Reeves said Ms Reeves, Ms Chadbourne and their friend Ms Jodie Noonan (now Ms Jodie Crane) then arrived.  Mr Reeves insisted that Ms Chadbourne had not been on the driveway during the altercation.  Mr Reeves told the court that Mr Thomas then left the driveway and returned in the direction of the patio area.  The women attended to Mr May.

17. Mr Reeves explained that a bit later he and the women carried Mr May to the car of Ms Chadbourne's parents.

18. It was put to Mr Reeves during cross-examination that when he had given evidence during the previous trial, he had not talked about being fearful.  Mr Reeves answered that his current recollection was what he had said in evidence.  It was suggested to Mr Reeves that he himself did not try to fend off Mr May and this indicated that it had also not been necessary for Mr Thomas to do so.  Mr Reeves replied that Mr May was not coming directly towards him.

19. It was also put to Mr Reeves in cross‑examination that Mr Thomas' evidence had been that he had only used one arm to fend off Mr May.  Mr Reeves replied that he did not recall it that way.  It was further put to Mr Reeves that Mr Thomas had said that Mr May had held both arms up when approaching them.  Again, Mr Reeves said that he did not recall it in that manner.

20. Mr Reeves readily agreed that he had discussed with other people who had been at the party, what had occurred and where everyone was and how it happened.  Mr Reeves pointed out that after the police told them that the matter would not be pursued with criminal charges they thought that it had been the end of any repercussions flowing from the incident.  Mr Reeves conceded that even after the civil proceedings had been instituted there might have been further discussions between the people at the party.  He also conceded that he did not recall in detail what had happened that night.

21. It was apparent that Mr Reeves was doing his best to recollect events and was prepared to concede that what he had told the police soon after the incident was likely to be more accurate.  When it was put to him that he had a different recollection of how many arms Mr May had raised and whether Mr Thomas had fended off Mr May with one or two arms Mr Reeves did not try and explain away the difference, but simply said that this was the way he recalled it.

22. The fact that there were differences in the account that Mr Thomas gave and the events as Mr Reeves remembered them indicates that these two witnesses had not conferred and agreed on giving evidence in the same manner.  It also shows that each witness' evidence had not been influenced by what had been discussed in general terms with the other.

23. I accept that both Mr Thomas and Mr Reeves gave truthful evidence to the best of their recollections.

24. Counsel for Mr May suggested that both Mr Thomas and Mr Reeves had embellished or adjusted their account to suit the defence case.  It is true that both Mr Thomas and Mr Reeves made a point of saying on a number of occasions that they felt intimidated and fearful and thought that Mr May would assault them in some manner.  However, this was always in response to particular questions asked in that regard.

25. It did not seem that either Mr Thomas or Mr Reeves were keen to volunteer particular aspects of the defence case or had any axe to grind.  Both of them gave evidence in a confident, calm and measured manner, answering the questions forthrightly and without hesitation.

26. Insofar as there are differences between the evidence of Mr Thomas and Mr Reeves, I prefer the evidence of Mr Thomas.  He was more directly involved in the events and would have been more likely to have engrained them in his memory.  He was also interviewed at length by the police three weeks after the incident which would have further cemented his memory.  He was pretty certain of how events had unfolded and gave his evidence without hesitation.  It did not have the appearance of being rehearsed, as he was also prepared to make concessions.

27. Mr Reeves was a bit more uncertain about the detail of the events which may be explained by the fact that he was less directly involved and the repercussions of the incident were less likely to affect him.  He emphasised that this incident had occurred 14 years ago.

Ms Rochelle Reeves

1. Ms Reeves gave evidence that she and Mr Reeves got married, but they are no longer together.

2. She told the court that at about 10 or 11 o'clock that evening she saw her father, Mr Sadgrove and Mr May standing near a group of people who were seated on the lawn.  The two men were having some sort of altercation.  She heard Mr Sadgrove say words to the effect 'This is my castle and I want you to leave'.  Mr May seemed to be drunk and her father appeared to be quite upset.

3. Ms Reeves said she approached Mr May and said to him words to the effect of, 'Come on Mark, it's time to go'.  Ms Reeves ushered Mr May up the stairs to the patio and out to the driveway by the gate.  She told him that Ms Kate Chadbourne was already waiting at the car.  In fact, Ms Reeves knew that Ms Chadbourne was not at the car, but she said she wanted Mr May to leave without Ms Chadbourne.  Ms Reeves was not sure where Ms Chadbourne was at that time.

4. Ms Reeves gave evidence that only her partner at the time, Mr Zeffron Reeves, followed her and Mr May out to the driveway.  Mr Thomas did not walk out to the driveway with them.  She said he may have gone up the stairs to the patio with them, but no‑one followed them out to the driveway.

5. She and Mr Reeves watched Mr May turn into the street.  They assumed that he had left and walked back up the driveway.  When they were halfway up the driveway they heard Mr May on the driveway calling out for Ms Chadbourne.  Mr May said words to the effect, 'Kate, come out here.  You know what will happen if you don't'.  Ms Reeves said Mr May sounded angry and aggressive and she was afraid that he would come back into the house.  Mr Reeves asked her to get help.

6. Ms Reeves gave evidence that she walked in the direction of the carport.  At that stage there was no‑one else on the driveway except her, Mr Reeves and Mr May.  As she came to the corner of the house where the patio started, she ran into Mr Thomas.  She could not recall saying anything to him or telling him what was happening on the driveway.  She assumed that he was going out the front to be with Mr Reeves and she was concerned to make sure that Ms Chadbourne would not come outside.  Ms Reeves agreed that although she could not recall saying anything to Mr Thomas, it was possible that she told him that Mr Reeves needed help.

7. Ms Reeves told the court that she found Ms Chadbourne on the patio together with Ms Sandra Crane.  Ms Chadbourne was upset as they could hear Mr May yelling from the driveway for her to come out.  Ms Chadbourne tried to leave, but Ms Reeves grabbed her by the arm and told her not to go outside.  Ms Reeves asked Ms Crane to call her father.

8. Ms Reeves then walked back out onto the driveway.  She said Ms Chadbourne followed her and was right behind her.  When she came to the driveway she saw Mr May on the ground.  Ms Reeves stated that Mr May was lying on his side on the driveway facing towards the carport.  Mr Thomas and Mr Reeves were standing between her and Mr May, facing Mr May.  She did not see how Mr May had landed on the ground and did not observe any contact between Mr Thomas and Mr May.

9. Ms Reeves said a number of other people came out onto the driveway at that time.  Some of them, including Ms Chadbourne, walked over to Mr May.  He was sitting up at that stage.  She did not see how he got into a sitting position, but he seemed to maintain that position for the short time that she remained outside.  She walked back inside the house to call Ms Chadbourne's parents in order to ask them to collect Mr May.

10. Ms Reeves said that she did not recall where Mr Thomas was when she left to make the telephone call.  All she remembered was that she saw him again at the party at a later stage.

11. Ms Reeves told the court that she returned to the driveway after having called Ms Chadbourne's mother, but left again to make a second call to her, because it took some time for Ms Chadbourne's father to arrive with the car.  When Mr Chadbourne finally arrived he suggested to Ms Reeves that she call an ambulance.  She went back inside and called an ambulance, but was told shortly afterwards to cancel the ambulance as people were trying to put Mr May into Mr Chadbourne's car.  Ms Reeves said she thought Mr May was conscious throughout the period of time when she saw him on the driveway and until he left in the car.

12. Ms Reeves impressed as an honest and careful witness.  She did not deny that she had discussed with others what had occurred that night, including with her partner, Mr Zeffron Reeves.  She agreed that they had possibly endeavoured to piece together what had happened, but denied that they had tried to arrive at a consensus view.

1. It was apparent from the evidence that the witnesses for the defence had not tried to arrive at a consensus view.  Ms Reeves gave evidence that Mr May was sitting on the driveway at a location closer to the carport than had been identified by her partner, Mr Reeves, and Mr Sadgrove.  She also said that she could not specifically recall asking Mr Thomas to assist Mr Reeves on the driveway, whereas Mr Thomas said Ms Reeves had told him that there was trouble at the front and had asked him to check that her partner was okay.  Mr Thomas said he was on the patio when this occurred, while Ms Reeves said she ran in to Mr Thomas at the corner of the house as he was leaving the patio.  These matters certainly indicate that there was no collusion between the defence witnesses.

Ms Jodie Crane

1. Ms Crane gave evidence that she and her then partner, now husband, Mr Richard Crane were at the engagement party.  She had met Mr May a handful of times before that evening.  She noted that he was already quite drunk early in the evening, slurring his words.  He was also angry with Ms Chadbourne for some reason.  He swore at her, called her a 'fucking cow' and was 'awful' to her.  Ms Chadbourne ended up crying inside the house and Ms Crane said she spent most of the night consoling Ms Chadbourne.

2. Ms Crane gave evidence that at some stage Ms Chadbourne returned to the patio after having regained her composure.  Ms Crane then heard Mr Sadgrove asking Mr May to leave.  Mr Sadgrove said something about his castle.  She then saw Ms Rochelle Reeves take Mr May by the hand and lead him up the stairs to the patio and out by the gate towards the driveway.  Ms Crane said she saw Mr Zeffron Reeves follow his partner and Mr May.  She did not know where Mr Thomas or Ms Chadbourne were at the time.

3. Ms Crane stated that she must have been on the lawn area when she saw Ms Reeves and Mr May walk out by the gate, because the mental image that she had of this was from an angle placing her on the lawn.  Counsel for Mr  May put to Ms Crane that she had said at the previous trial that she had been on the patio when Ms Reeves and Mr  May left.  Ms Crane could not explain the discrepancy or say exactly where she was.  It does not seem that much turns on this issue.

4. Ms Crane told the court that sometime later Ms Reeves came back to the patio and asked her for the telephone number for Ms Chadbourne's father.  She heard Ms Reeves ring Mr Chadbourne to come and collect Mr May.  Ms Crane said that she had not heard any fracas or noise from out the front.

5. After Ms Reeves had called Mr Chadbourne, Ms Crane said she followed Ms Reeves to the driveway.  She saw Mr May sitting on the driveway with one knee pulled up, the other leg straight.  He had his elbow resting on the knee with the forearm up and his head on that hand.  Ms Crane said she could not recall whether Mr Thomas or Ms Chadbourne were there.

6. Mr May told everyone to go away.  He was still slurring his words and was swearing.  Ms Crane said that she did not see any bleeding.

7. Ms Crane gave evidence that at some stage her partner and someone else tried to help Mr May to the street by supporting him with one of his arms on each of their shoulders.  During this manoeuvre Mr May lurched and fell backwards.  Ms Chadbourne explained that her partner also fell backwards, hurt his elbow and twisted his ankle.  Ms Chadbourne illustrated to the court that Mr May fell straight backwards with his arms raised to about head height.  She said she was concerned for what had happened to her partner and did not see whether Mr May's head hit the ground.

8. Ms Crane said there were a number of subsequent attempts to move Mr May towards the street and she recalled another occasion some 15 minutes later when Mr May again fell backwards and she heard a loud crack.  She was very concerned about what had occurred, until she heard Mr May snoring loudly and thought that that was a good sign.

9. Eventually Mr May was placed into Mr Chadbourne's car.  He was not snoring at that time, but Mr Crane assumed that he was just very intoxicated.  She did not see any bruising, cut or blood on his face.

10. Ms Crane did not have a good memory of exactly what happened after she had gone outside and seen a number of attempts by people to assist Mr May to the street.  However, she was one of the people who helped Mr May and followed Mr Chadbourne's car to his house.  She therefore had the opportunity to observe Mr May at that time.

11. At the house Ms Crane saw Ms Chadbourne place a coffee table with a pillow outside the open car door so that Mr May could rest his feet on the table and spend the night lying in the car.  It was not regarded feasible to lift him out of the car and take him inside because he was such a big person and very intoxicated.  Ms Crane said she thought Mr May was just badly intoxicated.

Mr Mark May

1. Mr Mark May was aged 32 at the time of the incident.  He gave evidence that he and Ms Chadbourne had been partners for about four years at that time and had a child together.  He did not want to go to the party, but went at the insistence of Ms Chadbourne.  Prior to going to the party he and she had dinner at the house of Ms Chadbourne's parents.  Mr May said he had approximately two beers at home before they left and two beers at the house of Ms Chadbourne's parents.  He took 12 cans of mid‑strength beer to the party and had between six and nine of those beers in the course of the evening.

2. Mr May said he could not recall any disagreement between him and Ms Chadbourne, nor between him and Mr Sadgrove.  He told the court that later in the evening he sat on his own on a brick wall outside in the garden.  There were two groups of people in the garden, but he was an outsider.  He said he was asked to leave the party for no apparent reason.  He said he assumed he had upset Ms Chadbourne.

3. Mr May gave evidence that he walked out towards the driveway on his own.  He did not know whether anyone followed him.  When he got to his car he realised that he did not have the keys.  He walked back up the driveway, but no‑one was on the driveway at that time.  When he arrived at the gate at the end of the carport, he heard people on the other side of the gate and he called out 'Can you get Kate?'  He heard a voice say that the person would go and get her.

4. Mr May gave evidence that he then turned and walked back out through the carport and 2 m or 3 m further down the driveway.  He waited there facing the street.  Suddenly he heard a scuffle and footsteps behind him.  When he turned around, a light came on and all he could see was the top of a head with a 'crew cut, like real short hair, like maybe a number 2'.  Next he felt being hit on the chin and fell down.  He could not remember anything after that except waking up in hospital.

5. Mr May could not say how he had been hit or whether he had been punched.  He assumed that he had been punched because of what the doctors had told him and because he had a 1 cm long cut on the left side of his chin, which later turned into a scar.

6. Mr May said there was no reason for anyone to hit him and no angry words were exchanged just before he was struck.  Mr May stated that he was not facing his attacker immediately prior to being struck.  Mr May denied having been abusive or aggressive at that time, or at any other stage during the evening.

7. Mr May disagreed with the proposition that when he returned to the driveway he saw two men standing on the driveway who tried to stop him walking further towards the house.  He also disagreed that he was angry at the time and wanted to retrieve Ms Chadbourne from the party.

8. Mr May was cross‑examined about his statement that the person who hit him had a 'crew cut, like real short hair, maybe a number 2'.  It was put to Mr May that the photograph of Mr Thomas at the party shows that his hair was shaved at the time.  Mr May initially denied that the person who hit him had a shaved head, but later tried to explain that  he would include a shaved head under the description of a 'crew cut' or a 'number 2'.

9. Mr May gave evidence that shortly before he lost consciousness, he saw three women coming out of the house.  He did not know whether one of them was Ms Kate Chadbourne.  It was put to Mr May in cross-examination that he had previously told the police that he had seen Kate come out by the front door and that she was standing there with Ms Rochelle Reeves about a metre behind her.  Mr May replied that he was not sure whether Ms Chadbourne was one of the three women who had come out, but he assumed that she was one of them.  He could not say whether she had emerged from the front of the house or the back.

10. Mr Reeves and Ms Reeves both gave evidence that people only used the entrance through the carport and the gate that night and did not walk through the house.  Ms Reeves said the front door was locked.

11. It was put to Mr May that he had told the police that Ms Chadbourne had come out through the front door and had walked to his side, to approximately 2 m from him.  He had then motioned towards the car and started to walk down the driveway.  Mr May replied that he had never motioned, in the sense of pointed, towards the car and that what he had meant to tell the police is that he had motioned, in the sense of started to walk, towards the car.

12. Mr May was not a satisfactory witness.  It seems that he has no, or very little, memory of that night.  He tried to explain away the difference between a crew cut and a shaved head and the inconsistency of having said in court that he did not know whether Ms Chadbourne was one of the three women who came out and having told the police that he had observed her coming out by the front door and walking to his side.

13. Even if one were to accept his evidence as a truthful account of what he remembered, the version of events that he gave to the court is highly unlikely.  On Mr May's account he was never aggressive or argumentative throughout the evening and there was no altercation with Mr Sadgrove and no reason why he had been asked to leave.  When he returned to the driveway, after realising he did not have his keys, he never met anyone on the driveway.  He called out to some unseen person to get Kate and then turned around and walked back down the driveway 2 m or 3 m towards the street.  For absolutely no reason and out of the blue he was approached from behind and hit or punched on his chin when he turned around.  There was no altercation and no reason for him being attacked from behind.  This is very unlikely to have happened.

Ms Kate Chadbourne

1. Ms Chadbourne gave evidence that she went to the party with her then partner, Mr May.  They were living together at the time and had a child who was almost aged 3.  She explained that currently she and Mr May were no longer partners or friends, but she still saw him regularly when he picked up their son or dropped him back after an access visit.  She did not say anything about problems in their current relationship.

2. Ms Chadbourne immediately informed the court that these events had happened a long time ago and that she could not remember the fine detail.

3. She said Mr May had been obnoxious that evening at the party and she had tried not to talk to him.  She agreed that she had been upset and had talked to Ms Rochelle Reeves inside the house.  Ms Chadbourne said she could not remember whether she was present when Mr May was asked to leave.

4. Ms Chadbourne gave evidence that for some reason, which she could not remember, she went out to the front of the house.  She could not say whether she was in the carport or in front of the carport when she observed an incident on the driveway.  She could also not remember who was with her.

5. Ms Chadbourne said, 'I think what happened was Mark was there.  I think a man came from behind and I think the man punched Mark, and I think Mark fell to the ground'.  When asked whether she recalled that, Ms Chadbourne replied 'I guess so, but it is hard to say.  I cannot recall the sounds.  I cannot necessarily recall an image.  I can only recall the stories that have – if you know what I mean'.  Ms Chadbourne then volunteered that Mr May was wearing black jeans, black boots and a black shirt with a yellow pattern.

6. Ms Chadbourne said Mr May was in front of her, further down the driveway, but she could not say how far he was from her.  She explained that she had no picture in her mind other than that he was standing there.  She recalled that Mr Thomas then walked past her, went up to Mr May and punched him on the left chin and mouth.

7. Ms Chadbourne said she could not recall any words being said by anyone or any sounds.  She could not say what had happened in between Mr Thomas walking past her and him punching Mr May.  However, she volunteered that Mr Thomas was wearing a blue denim shirt and jeans.

8. Ms Chadbourne gave evidence that Mr May fell backwards like a felled tree.  She walked up to look at him, and he was not responsive.  He lay there as if asleep.

9. It was put to Ms Chadbourne in cross‑examination that she had told the police in a statement handwritten on 4 March 2001 that when she came to the front she saw Mr May and Rick (the partner of Ms Jodie Crane) standing on the driveway.  Ms Chadbourne said she could not remember that at this stage, but accepted that what she had told the police was the truth.  She added that she had consumed a few drinks and had been tired that night.  She could not say whether Mr Zeffron Reeves was on the driveway.

10. It was also put to Ms Chadbourne that she had said in the statement to the police that when she arrived out the front she saw a person who had passed out and was lying on the grass to the right side of the driveway.  She said she could not recall this now, but accepted that what she had told the police would have been her best and truthful recollection at the time.  Ms Chadbourne denied that the person she had seen lying passed out on the grass had been Mr May and that she did not see Mr Thomas punch Mr May.  Ms Chadbourne said she was certain she had seen a punch and that it was a punch to the chin with a closed fist.  She volunteered that it was not a slap to the side or a shove.  She said she had never seen anyone before being hit by way of a punch.

11. Ms Chadbourne emphasised on a number of occasions, often volunteering this, that she could not remember the fine detail of what had happened that night.  She stated that she found it difficult to bring back a picture or the memory of what happened, particularly because it was something that she had tried to forget.

12. It was put to Ms Chadbourne that Ms Rochelle Reeves had walked out in front of her and that she had followed her.  Ms Chadbourne said that she could not remember, but added that she definitely saw Mr Thomas punch Mr May.  She gave evidence that Mr May never came to a sitting position after having been punched.

13. Ms Chadbourne said other people helped Mr May to her father's car.  They did not have a good grip on him and he fell.  She told the court she could not remember whether Mr May hit his head on the driveway, but accepted that she had told the police in her statement that he did and agreed that it would have been her best and true recollection at the time.

14. Ms Chadbourne explained that they left Mr May lying on the back seat of the car, because they assumed that he was simply asleep.  She recalled him trying to sit up the next morning and having a fit.  They then organised for Mr May to be taken to hospital.

15. Ms Chadbourne said that she noticed a small cut on Mr May's chin just below the left corner of the mouth.

16. I did not find Ms Chadbourne to be a satisfactory witness.  Her demeanour was unsettled; she was defensive and her answers vague and evasive.  She initially refused to answer a question as to what school she was currently teaching at, saying this had nothing to do with the case before the court.  She often used words such as 'probably', 'maybe' and 'I thought' in her answers.  For example, when she was asked whether she had been in a relationship with Mr May at the time of the incident, she answered: 'I think so, yes.'

17. She also emphasised repeatedly that she could not remember the detail of what had occurred on the driveway, other than remembering distinctly that she saw Mr May on the driveway, Mr Thomas walking past her and him punching Mr May on the chin and mouth.  She also remembered what clothing both were wearing.

18. I have great difficulty in accepting that Ms Chadbourne could not remember anything about the events immediately preceding what she said was the punch by Mr Thomas.  It could be readily accepted that a bystander unconnected to the people involved might say 14 years later that he or she only had a mental image of the punch and could not remember anything that occurred immediately before or after.  However, Ms Chadbourne was not a disinterested bystander.  Surely, if her then partner and father of her child had been punched so forcefully that he fell straight back like a tree and then lay unresponsive on the driveway as if he was asleep and was subsequently diagnosed with a serious brain injury, one would expect that she would have gone over in her mind in great detail exactly what had occurred immediately before and after that punch.

19. One would expect Ms Chadbourne to have been most concerned in the days after the incident to try and recollect what had occurred, why her partner was punched and exactly how it came to that situation.  Admittedly, it is now 14 years later.  But once a person has mulled over such an incident in detail, the person's memory would be likely to retain at least the material aspects of what exactly happened just prior to the punch and thereafter. There was no evidence that Ms Chadbourne was so intoxicated that she could not remember anything the next day.  She did not give evidence that she was intoxicated. Asked whether she had attempted to drown her sorrows that night, she said she did not know.  She said she had had a few drinks and was tired.

20. I do not accept that Ms Chadbourne clearly remembers the punch and the clothing that Mr Thomas and Mr May were wearing and nothing else.

21. It is also difficult to believe that if Ms Chadbourne had seen her partner being punched so hard that he fell like a tree and then lay unresponsive on the driveway, as if he was asleep, she did not call an ambulance.

22. Counsel for Mr May asked Ms Chadbourne at the beginning of her evidence whether she was a willing participant in these proceedings.  Ms Chadbourne answered that she knew she had to come to court.  Counsel for Mr May had informed the court previously that she was a reluctant witness.

23. I find it difficult to understand her reluctance to give evidence which was also apparent in her demeanour.  Why would a person who still has a courteous relationship with the father of her child, whom she sees every now and then in connection with access visits be reluctant to come to court and give evidence in his case, particularly where her evidence is in support of his case and not against it?  The reluctance had nothing to do with her having to go out of her way to make time to appear in court.  In fact, the court adjourned the matter for two days in order to allow for the two days of parent interviews that Ms Chadbourne had lined up as a primary school teacher and could not change.

24. Taking into account all these matters and Ms Chadbourne's demeanour when giving evidence, one can only conclude that she was reluctant to come to court and repeat something that she had told the police and which she realised had probably involved some assumptions and reconstruction on her part.

25. It is possible that Ms Chadbourne saw the tail end of the altercation on the driveway when she followed Ms Reeves out to the front of the house.  I accept the evidence by Mr Thomas and Mr Reeves that there was no‑one on the driveway near them when the altercation occurred.  But Ms Chadbourne may have seen something from a distance and may have surmised that the movement she saw Mr Thomas make was a punch.  She may have felt reinforced in that conclusion when she saw the cut on Mr May's chin.

1. Mr Chadbourne said by the time he arrived he found Mr May lying on the ground and gently snoring.

2. The question whether Mr May would still have been able to sit up and talk if he had received the skull fracture as a result of the push was not explored during the trial.  Dr Fong explained in his report that in general, where there had been a sufficient force of impact to cause a brain injury, the person would have been rendered unconscious.  However if the force of impact was only moderate, the person could have only suffer a period of confusion and disorientation.

3. It is not possible to say on the available evidence that Mr May's condition immediately after the first fall indicates that he had not suffered the skull fracture at that stage.  Further medical evidence would have been required to make that finding.  It is in any event not a point that was relied upon by counsel for Mr Thomas.

4. Taking all the evidence into account, particularly that of Dr Fong, and the likelihood of Mr May having lost all control after the push because of his high level of intoxication, I am satisfied on a balance of probabilities that he did fall on his back and hit his head on the driveway at that stage and that the skull fracture was caused by that fall.

Self-defence in common law

1. This brings me to the question whether Mr Thomas has proven on a balance of probabilities that one of the defences relied upon by him apply and that his conduct in fending off Mr May was therefore lawful.  I shall first deal with self-defence and defence of another in common law.

2. As indicated by the Court of Appeal in order to rely on self-defence in common law, Mr Thomas had to prove the following matters on a balance of probabilities:

   (a)that he believed Mr May was about to assault him;

   (b)that he believed the force which he used was necessary in order to defend himself from Mr May's assault; and

   (c)that he had reasonable grounds for those beliefs, in the circumstances as he perceived them to be.

3. I am satisfied on a balance of probabilities that Mr Thomas believed that Mr May was about to assault him.  Mr Thomas gave evidence that Mr May was very aggressive and threatening during the altercation on the driveway and that he suddenly lunged at him and Mr Reeves with both arms raised in the air and fists clenched.  Mr Thomas said he believed Mr May would attack him or Mr Reeves in a violent fashion.

4. I agree with counsel for Mr May that Mr Thomas put his case regarding his belief that he would be attacked in stronger and more direct words in court than how he formulated it to the police. But essentially he told the police the same thing during the interview.  Mr Thomas said to the police that Mr May was rushing at them to get past or through them.  It looked like Mr May might throw a punch at him.  He was coming at them and Mr Thomas did not know whether Mr May was going to throw punches; his arms were in the air and he was shouting.  Mr Thomas told the police that he acted in self-defence to keep Mr May at arm's length.  He said repeatedly to the police that Mr May was angry, aggressive and threatening.

5. Counsel for Mr May made much of the fact that Mr Thomas said to the police he did not know whether Mr May was coming at them to throw punches.  I would not attach too much weight to Mr Thomas starting his sentences during the interview with expressions such as 'I mean … I don't know'.  This was just his manner of speaking and, of course, he did not know for sure what Mr May was going to do.

6. Mr Thomas expressed clearly to the police that he expected to be attacked by Mr May, possibly with punches, but at the very least by the fact that Mr May would push his way through between him and Mr Reeves to get back to the party.  This in itself means Mr Thomas believed there would be some kind of an assault, because if Mr May had tried to force his way through with the other two men trying to block it, this would have resulted in at least some forceful pushing or shouldering by Mr May.  In light of the fact that Mr May was considerably taller and stronger, Mr Thomas is likely to have realised that this in itself would result in an assault.

7. During his evidence Mr Thomas emphasised his fear that Mr May would attack him and Mr Reeves in a violent fashion, but he also put it in more general terms by saying that when Mr May lunged at them he was concerned about his and Mr Reeves' 'safety and wellbeing'.  Mr Thomas specifically referred to his belief that Mr May would push his way past or through them by stating: 'My view was he definitely intended to re-enter the property at all costs.'

8. Pursuant to s 222 of the Criminal Code an assault does not have to be a violent attack or punch.  Pushing, shoving, or even threatening someone with this type of action constitutes an assault in law.

9. Accordingly, I am satisfied on a balance of probabilities that Mr Thomas believed that Mr May was about to assault him.

10. I am also satisfied that Mr Thomas believed that it was necessary to put out his outstretched arm in order to defend himself against Mr May's imminent attack.  Mr Thomas gave evidence that he instinctively reached out with his right arm to keep Mr May away.  He also told the police that he wanted to keep Mr May at arm's length and that he pushed out his arm in self-defence because Mr May was coming at him and Mr Reeves.

11. The next question is whether Mr Thomas had reasonable grounds for both these beliefs in the circumstances as he believed them to be.  This is an objective test and is not concerned with the state of mind of Mr Thomas.

12. It was reasonable for Mr Thomas to have believed that Mr May was about to assault him and that he had to fend off the attack by stopping Mr May's advance with his outstretched hand.  The fact that Mr May was angry and aggressive is supported by the evidence of Mr Sadgrove who stated that Mr May made abusive remarks which were totally unprovoked and gratuitous.  These remarks indicate that Mr May was looking for a fight, at least a verbal one.  He is likely to have been even angrier when he discovered that Ms Chadbourne was not at the car as he had been told.

13. When Mr May lunged at Mr Thomas with his arms in the air, it was reasonable for Mr Thomas to have expected that Mr May would either punch him or at least push his way through between him and Mr Reeves.  In the circumstances it was entirely reasonable to fend off Mr May with an outstretched arm.

14. I have already indicated why I do not accept the evidence that Mr Thomas punched Mr May.  However, it is likely that Mr Thomas' act of fending off Mr May with his outstretched arm was well-aimed and resulted in a solid push, because this is what Mr Thomas was trained to do during rugby matches.  But Mr Thomas' reaction was instinctive and occurred under pressure and it is well established law that a person cannot be expected to weigh up carefully what action might be the best and least invasive when he or she is under a sudden attack.  Even if Mr Thomas' act in stopping Mr May's approach with his outstretched arm resulted in Mr May receiving somewhat of a push backwards, this was still an entirely reasonable response.

15. Accordingly, I am satisfied on a balance of probabilities that Mr Thomas did act in self-defence when he fended off Mr May.  This means that Mr Thomas' conduct was not unlawful.

16. As I have found that Mr Thomas' conduct was lawful based on self‑defence in common law, it is not strictly speaking necessary to deal with any of the other defences that he relied upon.  However, I will briefly do so for the sake of completeness.

Defence of another in common law

1. The Court of Appeal held that the same principles apply to a defence of another in common law.  Mr Thomas therefore had to prove the following:

   (a)that he believed Mr May was about to assault Mr Reeves;

   (b)that he believed the force he used was necessary to defend Mr Reeves from Mr May's attack; and

   (c)that he had reasonable grounds for those beliefs, in the circumstances as he perceived them to be.

2. Mr Thomas gave evidence that Mr Reeves was standing next to him and that Mr May lunged at both of them.  He told the court that he feared that Mr May would attack him or Mr Reeves. Mr Thomas also told the police that Mr May was coming towards himself and Mr Reeves.  When asked by the police who Mr May was coming towards, Mr Thomas answered:  'Could have been either one of us.  So, no.  Just, we were standing next to each other.'  When the police questioned Mr Thomas as to why he took some action and not Mr Reeves, Mr Thomas replied: 'Maybe I was the closest one, and maybe I was the first one to see it.'

3. Accordingly, I am satisfied on a balance of probabilities, that Mr Thomas believed Mr May was about to assault both him and Mr Reeves, and that it was necessary to fend off Mr May with his outstretched arm in order to protect both himself and Mr Reeves.  For the reasons that I have given when dealing with self-defence, Mr Thomas also had reasonable grounds for those beliefs with regard to Mr Reeves.

4. This means that Mr Thomas' conduct was not unlawful, because it was also in defence of Mr Reeves.

Self defence against unprovoked assault - s 248 of the Criminal Code

1. The next defence that Mr Thomas relied upon was self-defence under s 248 of the Criminal Code as applicable at the time of the incident.  The Court of Appeal listed the following matters that Mr Thomas had to prove on a balance of probabilities:

   (a)that Mr May unlawfully assaulted Mr Thomas;

   (b)that Mr Thomas did not provoke the assault;

   (c)that the force used by Mr Thomas was reasonably necessary to make an effectual defence against the assault; and

   (d)that the force used by Mr Thomas was not intended, nor was it such as was likely, to cause death or grievous bodily harm or, if it was, the nature of Mr May's assault was such as to cause reasonable apprehension of death or grievous bodily harm, and Mr Thomas believed, on reasonable grounds, that he could not preserve himself from death or grievous bodily harm otherwise than by using the force which he used.

2. I have already come to the conclusion that Mr May was about to unlawfully assault Mr Thomas, at least to the extent that he was about to force his way through the two men and thereby shove, push or shoulder them out of the way.

3. Mr Thomas gave evidence that he approached Mr May where he was standing on the driveway arguing with Mr Reeves and told him to leave, as he was not welcome.  There was no suggestion during the trial that Mr Thomas had provoked Mr May in any manner.

4. I have already made findings that Mr Thomas believed that the force which he used was necessary in order to defend himself and that he had reasonable grounds for that belief. The requirement under s 248 that the force used was 'reasonably necessary' is similar to the requirement in common law that the belief regarding the necessary force be based on reasonable grounds. The issue of the reasonableness of the force is in each case to be assessed objectively.

5. I am satisfied that Mr Thomas used force which was reasonably necessary to make an effectual defence against the assault.  He instinctively fended Mr May off and in the process stopped his momentum and probably also pushed him away to some extent with his outstretched arm.  That is still very reasonable force in the circumstances.

6. It was not suggested by counsel for Mr May that Mr Thomas intended to cause death or grievous bodily harm to Mr May.  However, counsel submitted that the force used by Mr Thomas was likely to cause grievous bodily harm to Mr May.  Counsel for Mr May argued that it was likely that if someone standing on a hard surface was punched or pushed hard under circumstances where that person was highly intoxicated, he would lose his balance, fall backwards and hit his head on the hard surface.  This was likely to result in grievous bodily harm.

7. 'Grievous bodily harm' is defined in s 1 of the Criminal Code as meaning 'any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health'.

8. In Boughey v The Queen (1986) 161 CLR 10, 21, the majority in the High Court (per Mason, Wilson and Deane JJ) defined the word 'likely', used in s 157 of the Criminal Code (Tas) in the context of whether an act was 'likely to cause death', as follows:

   In our view the word 'likely' is used in both ss 156(2)(a) and 157 (1) with what we apprehend to be its ordinary meaning, namely, to convey the  notion of a  substantial – a 'real and not remote' – chance regardless of whether it is less or more than 50%.

9. Gibbs CJ held [14] – [15] that the word 'likely' should have its natural meaning of 'probable', not 'possible'.  Because the word 'chance' included possibility as well as probability, a direction to the jury about the meaning of the word 'likely' should avoid the word 'chance' even if it was qualified by 'good', 'substantial' or 'real'.

10. This means that I need to consider whether it was likely in the sense of it being more than possible, but not necessarily more than 50% probable, that Mr Thomas's push would cause Mr May to suffer grievous bodily harm.  The question whether this was likely needs to be determined objectively.  In other words, it is not relevant what Mr Thomas thought.

11. It was certainly possible that Mr May, who was highly intoxicated, would fall backwards and fracture his skull or another part of his body upon having his approach fended off with an outstretched arm and receiving what probably was a firm fend-off or push.  However, I have some difficulty in accepting that it was likely, in the sense of there being a substantial or real chance of this occurring.  Not every person who is pushed away, even if intoxicated, falls backwards in a manner which causes him or her to receive a fracture or other injury which results in permanent injury to health.  It is certainly possible, but I am not persuaded that it is probable.  Put differently, in terms of the burden of proof, I am satisfied on a balance of probabilities that the force used by Mr Thomas was not likely to cause death or grievous bodily harm.

12. Accordingly, I am of the view that Mr Thomas' conduct in fending off Mr May was also lawful under s 248 of the Criminal Code.

Aiding in self-defence - s 250 of the Criminal Code

1. The Court of Appeal held that in order to prove that Mr Thomas' actions were justified in defence of Mr Reeves under s 250 of the Criminal Code, he had to establish the following:

   (a)that Mr May unlawfully assaulted Mr Reeves;

   (b)that Mr Reeves did not provoke the assault;

   (c)that the force used by Mr Thomas was reasonably necessary to make an effective defence against the assault upon Mr Reeves;

   (d)that the force used by Mr Thomas was not intended, nor was it such as was likely, to cause death or grievous bodily harm or, if it was, the nature of Mr May's assault upon Mr Reeves was such as to cause reasonable apprehension of death or grievous bodily harm, and Mr Thomas believed, on reasonable grounds, that he could not preserve Mr Reeves from death or grievous bodily harm otherwise than by using the force which he used.

2. I have already found that Mr May was about to assault both Mr Thomas and Mr Reeves, at least by forcing his way between the two of them.  Mr Thomas and Mr Reeves were standing very close together.  Mr Reeves described it as 'shoulder to shoulder'.

3. There is no indication that Mr Reeves provoked the assault by Mr May.  Mr Reeves admitted in his evidence that there was a heated discussion between him and Mr May and that he told Mr May to 'fuck off'.  However, this swear word is so common in today's usage of the English language, that it cannot in itself be regarded as provocation.

4. The force that Mr Thomas used was reasonably necessary to make an effective defence against the assault upon himself, as well as the assault upon Mr Reeves.

5. I have already found that it was not likely that the force used by Mr Thomas was likely to cause grievous bodily harm to Mr May and it was not suggested during the trial that Mr Thomas intended to cause death or grievous bodily harm to Mr May.

6. Accordingly, Mr Thomas has also established that his conduct was lawful as he was aiding Mr Reeves in self-defence under s 250 of the Criminal Code.

Defence against home invasion - s 244 of the Criminal Code

1. The Court of Appeal held that in order to rely on the defence of home invasion as dealt with in s 244 of the Criminal Code, Mr Thomas had to establish the following matters:

   (a)that he was authorised by Mr or Mrs Sadgrove to prevent Mr May from re-entering their property;

   (b)that he believed that Mr May either had committed or was committing an offence, or intended to commit an offence, in addition to wrongful entry, on the property occupied by Mr and Mrs Sadgrove; and, if so

   (c)that he had reasonable grounds for that belief; and

   (d)that he believed that the force which he used was necessary:

   (i)to prevent Mr May from wrongfully entering Mr and Mrs Sadgrove's property; or

   (ii)to cause Mr May, who was wrongfully on Mr and Mrs Sadgrove's property, to leave the property; or

   (iii)to make effectual defence against violence used or threatened by Mr May who was attempting wrongfully to enter Mr and Mrs Sadgrove's property or was wrongfully on their property; or

   (iv)to prevent Mr May from committing, or to make Mr May stop committing, an offence on Mr and Mrs Sadgrove's property; and, if so

   (e)that he had reasonable grounds for that belief.

2. Counsel for Mr Thomas submitted in his oral closing address that Mr Thomas had been authorised by Mr Sadgrove to prevent Mr May from re-entering the property.  Counsel argued that the authorisation was passed down a chain, from Mr Sadgrove to Mr and Ms Reeves and from them to Mr Thomas.  Counsel for Mr Thomas relied on the fact that Mr Sadgrove had asked Mr May to leave the property and that Ms Reeves and Mr Reeves came to his assistance and escorted Mr May out.  Counsel submitted that there was implied authority by Mr Sadgrove to Mr and Ms Reeves to prevent Mr May from re‑entering the property.  That implied authority was then passed on to Mr Thomas by Ms Reeves when she asked him to assist Mr Reeves on the driveway and also by Mr Reeves when he told Mr Thomas that he needed a hand.

3. In further written closing submissions counsel for Mr Thomas submitted that Mr and Ms Reeves were also occupants of the property and that Mr Thomas assisted Mr Reeves in preventing Mr May from re‑entering the property.

4. Section 244(3) essentially provides that a person who assists the occupant or is acting by the occupant's authority has the same rights regarding a home invader as the occupant.

5. There is no evidence that Mr and Ms Reeves were also living at that property or were the occupants of it.  Mr Reeves gave evidence that he went to a party held at the home of his fiancée's parents.  Ms Reeves said she was not living at her parents' home at the time.  Accordingly, Mr Thomas could not have assisted the occupant, as Mr Reeves was not an occupant of the house.

6. However, I accept that Mr Thomas had the authority of Mr Sadgrove, as delegated to him by Mr and Ms Reeves, to prevent Mr May from re-entering the property.  Although the general rule in a contractual context is that an agent cannot delegate to another person a specific task assigned to him, this is based on the understanding that the agent is usually entrusted with a task involving discretion or confidence:  De Bussche v Alt (1878) 8 Ch D 286, 310. The task of preventing Mr May from re-entering the property neither involved particular discretion or confidence.

7. Further, where in the course of carrying out the instructions given by the principal, unforeseen emergencies arise which impose upon the agent the necessity of employing another person to assist or substitute him, it may reasonably be presumed that the principal intended that his authority could be delegated by the agent to the other person: De Bussche v Alt, 311.

1. Mr Sadgrove gave evidence that he advised Mr Reeves that he wanted Mr May to leave the property.  By implication, he also indicated to Mr Reeves that he did not want Mr May to re-enter the property.  It may reasonably be presumed that if Mr Sadgrove had been asked whether Mr Thomas could assist Mr Reeves in preventing Mr May from re‑entering the property, he would have been agreeable to that.  Mr Thomas gave evidence that he was a friend of the Sadgrove family.

2. Mr Thomas said he was requested by Ms Reeves to go to the driveway and check on Mr Reeves because there was a bit of trouble at the front.  Mr Reeves gave evidence that when Mr Thomas joined him on the driveway, he told him that Mr May was trying to get back in and asked him to give him a hand.  Mr Thomas was also aware that Mr Sadgrove had previously asked Mr May to leave.  Mr Thomas did not become involved of his own accord in trying to stop Mr May from re‑entering the property but because he had been requested to do so by Mr and Ms Reeves and because he knew that Mr Sadgrove wanted Mr May to stay off the property.

3. Mr and Ms Reeves therefore delegated or imparted the authority they had received from Mr Sadgrove to Mr Thomas.  Mr Thomas knew that in preventing Mr May from re-entering the property he was acting on behalf of the occupant and principal, Mr Sadgrove.

4. As regards the other requirements of the defence of home invasion, counsel for Mr Thomas informed the court that the additional offence that Mr May intended to commit on the property, apart from wrongful entry, was the assault on Mr Thomas and Mr Reeves and that Mr Thomas believed that the force he used was necessary to stop Mr May from proceeding any further into the property.

5. It was not disputed at the trial that the driveway formed part of the property occupied by Mr and Mrs Sadgrove.  However, it seems a little artificial to rely on the defence against home invasion where there was no evidence that Mr Thomas was concerned that Mr May might commit an offence once back at the party or that he might assault Mr Thomas or anyone else once he had pushed past and continued walking down the driveway.

6. The defence against home invasion only applies where the person using force believed that the other person coming onto the property might commit an offence once on the property.  Counsel for Mr May pointed out that Mr Thomas had not pleaded that he thought that Mr May might commit an assault against Ms Kate Chadbourne or other people at the party.  In order to rely on the defence against home invasion, Mr Thomas would therefore have to say that he believed that if he allowed Mr May to take another step or two in his direction on the driveway he would assault him and therefore he used force to prevent Mr May from taking another step or two onto the property.

7. The imminent assault by Mr May on Mr Thomas and Mr Reeves is best considered as part of self-defence.  It would be artificial to hold that Mr Thomas fended off Mr May because he did not want him to further enter the property and commit the offence of assault against him or Mr Reeves.

8. Accordingly, the defence against home invasion does not assist Mr Thomas in proving that his conduct was lawful.

Defence of property against trespassers - s 254 of the Criminal Code

1. The last potential defence that Mr Thomas relied upon was the defence of property against trespassers under s 254 of the Criminal Code.  The Court of Appeal held that in order to rely on this defence, it was necessary for Mr Thomas to establish the following matters:

   (a)that he was authorised by Mr or Mrs Sadgrove to prevent Mr May from wrongfully entering their property;

   (b)that Mr Thomas used only such force as was reasonably necessary to prevent Mr May from wrongfully entering the property;

   (c)that Mr Thomas did not intend to cause grievous bodily harm to Mr May; and

   (d)that the force used by Mr Thomas was not such as was likely to cause grievous bodily harm to Mr May.

2. I have already found that Mr Thomas was impliedly authorised by Mr Sadgrove to prevent Mr May from wrongfully re-entering the property.

3. Mr Thomas gave evidence that when Mr May lunged at him, he thought that Mr May intended to re-enter the property at all costs.  Mr Thomas kept Mr May from pushing through between him and Mr Reeves and held him back with his outstretched arm.  I am satisfied that this was reasonably necessary to prevent Mr May from wrongfully entering the property.

4. I have already found that Mr Thomas did not intend to cause grievous bodily harm and the force used by him was not such as was likely to cause grievous bodily harm to Mr May.

5. Accordingly, Mr Thomas' conduct is also justified by the defence of property against trespassers and was lawful.

Conclusion

1. This means that Mr Thomas' conduct in fending off Mr May was justified on the basis of a number of different defences and not unlawful.  Mr May's claim can therefore not succeed.