Presidential Security Services of Australia Pty Ltd v Brilley - [2008] NSWCA 204

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Presidential Security Services of Australia Pty Ltd v Clinton Joseph Brilley [2008] NSWCA 204

FILE NUMBER(S):
40442/07

HEARING DATE(S):
21 July 2008

JUDGMENT DATE:
9 September 2008

PARTIES:
Presidential Security Services of Australia Pty Ltd (Appellant)
Clinton Joseph Brilley (Respondent)

JUDGMENT OF:
Allsop P Beazley JA Ipp JA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 4810/05

LOWER COURT JUDICIAL OFFICER:
O'Toole DCJ

LOWER COURT DATE OF DECISION:
14 June 2007

COUNSEL:
P J Deakin QC; P R Stockley; J Beck (Appellant)
C T Barry QC; A C Canceri (Respondent)

SOLICITORS:
Curwoods Lawyers (Appellant)
CMC Solicitors (Respondent)

CATCHWORDS:
CRIMINAL LAW – corporate criminal liability – whether company capable of committing an offence – effect of section 16 of the Crimes (Sentencing Procedure) Act 1999 – meaning of section 10(1) of the Criminal Procedure Act 1986
CRIMINAL LAW – corporate criminal liability – rules of attribution of criminal responsibility to a company – rejection of vicarious criminal liability absent statutory intervention – statutory construction of the offence of assault – whether assault an offence of absolute or strict liability
CRIMINAL LAW – corporate criminal liability – rules of attribution of criminal responsibility to a company – application of Tesco Supermarkets Ltd v Nattrass [1972] AC 153 – directing mind and embodiment of a company – whether admission of vicarious liability also an admission as to directing mind and embodiment – relevance of company purpose
CRIMINAL LAW – criminal offences – assault and battery – elements of assault and battery
EVIDENCE – credibility findings – failure to identify basis of adverse credibility findings
TORTS – intentional torts – assault and battery – defences – self-defence – Civil Liability Act 2002 – section 52(2) – onus of proof – elements of self-defence – two-stage inquiry – relevance of intent to injure to a claim of self-defence
TORTS – intentional torts – assault and battery – where injury occurred following the commission of separate offences by the plaintiff and defendant – Civil Liability Act 2002 – approach to section 54 – section 54(1) – whether conduct constitutes a serious offence – section 54(2) – onus of proof – section 53 – failure to explain why the failure to award damages would be harsh and unjust.

LEGISLATION CITED:
Civil Liability Act 2002
Corporations Act 2001 (Cth)
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Crimes Legislation Amendment (Sentencing) Act 1999
Criminal Procedure Act 1986
Interpretation Act 1987
Suitors Fund Act 1951

CATEGORY:
Principal judgment

CASES CITED:
Attorney-General’s Reference (No 1 of 1985) (1985) 41 SASR 147
Attorney-General’s Reference (No 2 of 1982) [1984] 1 QB 624
Attorney-General’s Reference (No 2 of 1999) [2001] QB 796
Canadian Dredge & Dock Co v R [1985] 1 SCR 662
Director of Public Prosecutions v Gomez [1993] AC
Director of Public Prosecutions v Morgan [1976] AC 182
Director-General of The Department Of Land And Water Conservation v Greentree & Anor [2003] NSWCCA 31; (2003) 140 A Crim R 24
DPP v Kent & Sussex Contractors Ltd [1944] KB 146
Durovic v R (1994) 4 Tas R 113
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) HCA 74; 178 CLR 477
Huggins (1730) 2 Stra 883
Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705
Linehan v The Australian Public Service Association (1983) 67 FLR 412
Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500
Mifsud v Campbell (1991) 21 NSWLR 725
Moore v Bresler Ltd [1944] 2 All ER 515
Mousell Brothers Ltd v London and North-Western Railway Co (1917) 2 KB 836
Nationwide News Pty Ltd v Naidu; Security Pty Ltd v Naidu [2007] NSWCA 377
Odyssey Re (London) Limited (formerly Shere Drake Insurance plc) v OIC Run Off Limited (formerly Orion Insurance Clo plc) [2000] EWCA Civ 71
P & O European Ferries (Dover) Ltd (1991) 93 Cr App R 72
People v Rochester Railway and Light Co 195 NY 102 (1909)
R v Andrews-Weatherfoil Ltd [1972] 1 WLR 118
R v Birmingham and Gloucester Railway Company (1842) 3 QB 223
R v Cory Bros & Co Ltd [1927] 1 KB 810
R v Great North of England Railway (1846) 9 QB 315
R v HM Coroner for East Kent; Ex parte Spooner (1989) 88 Cr App R10
R v ICR Haulage Ltd [1944] KB 551
R v Katarzynski [2002] NSWSC 613
R v Kurtic (1996) 85 A Crim R 57
R v Lynsey [1995] 3 All ER 654
R v Murray Wright Ltd [1970] NZLR 476
R v Philippou (1989) 89 Cr App R 290
R v Roffell [1985] VR 511
R v Rozeik [1996] 3 All ER 281
Rowe v Transport Workers Union of Australia (1998) 90 FCR 95
South Hetton Coal Co v North-Eastern News Association [1894] 1 QB 133
Tesco Supermarkets Ltd v Nattrass [1972] AC 153
The King and the Minister for Customs v Australasian Films and Another (1921) 29 CLR 195
Transco plc v Her Majesty’s Advocate [2005] BCC 296
US v Kelso 86 F 304 (1898)
Whalan v Kogarah Municipal Council (2007) NSWCA 5

TEXTS CITED:
R P Austin, R P Ramsay, Ford's Principles of Corporations Law, 13th ed (2007) LexisNexis Butterworths
J Clough and C Mulhern, The Prosecution of Corporations (2002) Oxford University Press
H W Edgerton, "Corporate Criminal Responsibility” (1927) 36 Yale Law Journal 827
P L Davies, Gower and Davies' Principles of Modern Company Law, 7th ed (2003) Sweet & Maxwell
B Fisse, Howard's Criminal Law, 5th ed (1990) Law Book
Halsbury’s Laws of England, 2nd ed, Volume 8
A Pinto and M Evans, Corporate Criminal Liability (2003) Sweet & Maxwell
R S Welsh “The Criminal Liability of Corporations” (1946) 62 Law Quarterly Review 354
P H Winfield, A text-book of The Law of Tort, 3rd ed (1946) Sweet & Maxwell
C R N Winn, “The Criminal Responsibility of Corporations” (1927-1929) 3 Cambridge Law Journal 398

DECISION:
1. The appeal is upheld
2. The judgment and orders of O'Toole DCJ are set aside
3. The matter is remitted to the District Court for rehearing
4. The plaintiff to pay the defendant's costs of the appeal
5. The plaintiff to have a certificate under the Suitors Fund Act if otherwise entitled
6. The costs of the trial to be determined by the judge hearing the retrial

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40442/07
DC 4810/05
ALLSOP P
BEAZLEY JA
IPP JA
9 September 2008

PRESIDENTIAL SECURITY SERVICES OF AUSTRALIA PTY LIMITED v CLINTON JOSEPH BRILLEY

Judgment

ALLSOP P: I have had the considerable advantage of reading in draft the reasons of Ipp JA. Subject to what follows concerning the possible criminal responsibility of the appellant, I agree with his Honour’s reasons and with the orders proposed by him.
Mr Bingle was the managing director and sole employee of the appellant company, to which, for consistency with the reasons of Ipp JA, I will refer as the defendant. No reference was made by the primary judge to the ownership of the shares in the defendant or to its constitution. It might be assumed that the defendant was a company that could be described as Mr Bingle’s “creature”, but to a degree this would be speculation. No one at the trial seems to have directed any attention to the nature of the defendant and Mr Bingle’s relationship to it, beyond identifying the fact that he was its managing director and sole director and making the assertion (which was admitted) of “vicarious liability”.
It may be that, for identified purposes, Mr Bingle can be identified as the “directing mind and will” of the defendant: see Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 at 713 and Tesco Supermarkets Ltd v Nattrass [1972] AC 153; but that proposition may require the purposes of the defendant to be identified. The purposes of a company will, in the first instance, be found in its constitution. By the Corporations Act 2001 (Cth), s124, a company has the legal capacity and powers of an individual; though some restriction on the exercise of that capacity can be placed by the company’s constitution: Austin RP and Ramsay IM Ford’s Principles of Corporations Law (LexisNexis Butterworths, 13th ed) [12.130]ff.
The liability of a company for any particular breach of the criminal law will depend, in significant part, upon the nature, elements and terms of the offence. To the extent that the offence is created by statute, the process of “attribution” of criminal responsibility will principally be, or be at least based on, statutory interpretation of the provision creating the offence: Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500. In such cases, questions such as the need for a guilty mind or mens rea, the nature of that mental state and the person, agent or organ of the company who must have such state of mind will turn on understanding the words of the statutory provision and the will of Parliament.
Here, it may be that there was little complexity about the nature of the offence, or offences, but, as noted by Ipp JA, there was no pleading of any offence and no pleading at all of the Civil Liability Act 2002 (NSW), s54(2). Even if the offence or offences was or were easily identified, the primary judge concluded that Mr Bingle (not the defendant) was guilty of it or them. The inadequacies of approaching the matter thus have been dealt with by Ipp JA. The primary judge’s reasons reflect an absence of recognition of the need to attribute the conduct of Mr Bingle to the defendant in terms of criminal responsibility. This was not a matter of vicarious liability; rather, it was assessing from the nature of the offence, whether the conduct of Mr Bingle could be attributed to the defendant. This may or may not be straightforward. As managing director and sole employee, Mr Bingle may be seen as the company and its mind and will. But for what purposes? If, in committing the acts which are impugned as unlawful, he was seeking to perform or execute the defendant’s responsibilities as security guard, there may be no difficulty attributing his acts and his mental state to the defendant, even though they are unlawful: Meridian Global Funds Management and Director of Public Prosecutions v Gomez [1993] AC 442. The proposition that a corporation cannot be criminally liable because criminal acts necessarily go outside the objects (presumed lawful) of a corporation has not been accepted by the courts: Linehan v The Australian Public Service Association (1983) 67 FLR 412 at 435-436 (per Fitzgerald J); see generally Davies PL Gower and Davies’ Principles of Modern Company Law (7th ed) pp171ff. Such a proposition can be seen to rest on what has been said to amount to a fallacy that civil capacity and criminal responsibility are governed by the same considerations: Welsh RS “The Criminal Liability of Corporations” (1946) 62 LQR 345 at 347 citing Professor Winfield in The Law of Tort (3rd ed) pp105-106. Such a proposition is also difficult to sustain in the face of the Corporations Act, ss124 and 125.
There may, however, be limits to attributed responsibility. One such limit may be the nature of the offence as one of an intentional act of violence, or deliberate injury. I will return to this question. Assuming the defendant company can be criminally responsible for unlawful intentional infliction of physical harm, if Mr Bingle was not seeking to perform or execute the defendant’s responsibilities to the Club, but had engaged in a violent attack on the plaintiff for reasons other than driving him off as an intruder, it may be that, though the managing director and sole employee of the defendant company, he was no longer acting for it. An easy (and I hasten to add entirely hypothetical) example would be if Mr Bingle proceeded to rob a late night convenience store on his way home from work; or, perhaps closer to these events (though equally hypothetical) if he had caught Mr Brilley in the car and robbed him. The point is that at some point the actions of Mr Bingle may conceivably have ceased to be those of the defendant company. (Compare the notion of scope of authority referred to by Brennan J in Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; 178 CLR 477 at 514-515.) If, as the primary judge seems to have thought (and leaving aside for a moment the inadequate reasons), Mr Bingle was not engaged in seeking to defend himself or the property of the Club which the defendant had been retained to guard, and if he was motivated by a “callous intention to cause injury”, a question for investigation would arise whether he was the embodiment of, or to be identified as, or his actions and state of mind attributed to, the defendant company in respect of any such wrongdoing.
There is a body of authority supporting the proposition that for a company to be attributed with the intentions of a person for the purposes of criminal responsibility that person must be acting in furtherance of the company’s interests, or at least not against them: Director of Public Prosecutions v Gomez [1993] AC at 464-5, 491-2 and 496-97; Attorney-General’s Reference (No 2 of 1982) [1984] 1 QB 624; R v Philippou (1989) 89 Cr App R 290; Attorney-General’s Reference (No 1 of 1985) (1985) 41 SASR 147; Durovic v R (1994) 4 Tas R 113; Rowe v Transport Workers Union of Australia (1998) 90 FCR 95; R v Rozeik [1996] 3 All ER 281; Canadian Dredge & Dock Co v R [1985] 1 SCR 662. There is authority to the contrary: R v Roffell [1985] VR 511.
Depending upon the issues at any new trial, based on properly formulated pleadings, these questions may need to be investigated and adequately addressed.
The above assumes that the defendant company could be found guilty of a crime of intentionally inflicted violence. For there to be utility in any rehearing in the District Court, this question needs to be addressed by reference, at least, to the crimes now identified by the respondent in its written submissions. These crimes were: the Crimes Act 1900 (NSW), s61 (common assault), s33A (discharging a firearm with intent to cause grievous bodily harm), s93G (causing danger with a firearm) and s93GA(1) (firing at a dwelling house or building with reckless disregard for the safety of any person).
There is now authority that a company can be guilty of manslaughter: R v HM Coroner for East Kent; Ex parte Spooner (1989) 88 Cr App R 10; P & O European Ferries (Dover) Ltd (1991) 93 Cr App R 72; Attorney-General’s Reference (No 2 of 1999) [2000] QB 796; Transco plc v Her Majesty’s Advocate [2005] BCC 296; R vMurray Wright Ltd [1970] NZLR 476; and see generally the cases discussed in Clough J and Mulhern C The Prosecution of Corporations (Oxford University Press 2002) pp169ff. It does not naturally follow, however, from a conclusion that a company may be guilty of homicide based on gross negligence or some cognate culpable behaviour, that it can be guilty of a crime of intentional infliction of violence. It seems to be accepted that some offences by their nature can only be committed by a natural person. Before any consideration of the common law, it is necessary to have regard to relevant statutory provisions. The posited crimes are State crimes. Thus, relevant State legislation must be examined. Ipp JA has referred to the Crimes (Sentencing Procedure) Act 1999 (NSW), s16 which converts punishment by terms of imprisonment into fines. This provision removes the foundation for the argument that companies cannot be responsible for crimes in respect of which the only punishment is physical punishment of a human, whether by incarceration or otherwise. The Criminal Procedure Act 1986 (NSW), s10(1) is also relevant. It provides as follows:
Unless a contrary intention appears, a provision of an Act relating to an offence applies to bodies corporate as well as individuals.
On one reading, the wording of the Criminal Procedure Act, s10(1) may be seen to be insufficiently direct to mean that, subject to any contrary intention, any provision the terms of which create an offence applies to bodies corporate as well as individuals. In my view, however, when one looks at the history of the provision, it can be concluded that this meaning is encompassed within the section.
Until 1999, the Crimes Act, s360A(1) provided as follows:
Every provision of an Act relating to offences punishable upon indictment or upon summary conviction may, unless a contrary intention appears, be construed to apply to bodies corporate as well as to individuals.
In 1999, by the Crimes Legislation Amendment (Sentencing) Act 1999 (NSW), ss4 and 5 and Schedules 2 and 3, s360A was repealed and replaced by inserting a provision into the Criminal Procedure Act, which was, at first, s59 and later (after renumbering in 2001 by Act No 119 of 2001, Schedule 1[15]) s10. The Explanatory Note to the Crimes Legislation (Sentencing) Bill 1999 gave no indication that any change in meaning was intended. In the Second Reading Speech in the Legislative Assembly, the Minister (the Hon R Debus) explained the changes as ones “to rationalise the provisions relating to criminal procedure, to abolish the penalty of ‘penal servitude’, and the distinction between felonies and misdemeanours and to make [other consequential amendments]”.
In this context, it can be concluded that unless a contrary intention appears, the provisions of the Crimes Act to which I have referred contain offences that can be committed by a body corporate as well as by an individual. This contrary intention might appear from one or both of two related sources: either on the proper construction of the provision having regard to its text, context and history it can be seen as only intended to speak to the criminal responsibility of individuals, or the crime is one that intrinsically is not capable of being committed by a body corporate.
The appellant asserted, without elaboration, that a corporation could not form the necessary intent to support any of the above invoked offences. The respondent contested this by referring to the manslaughter cases to which I have referred. That was the extent of the debate.
I see nothing in the text or context of the provisions to which I have referred that would raise a contrary intention, other than, possibly, the nature or elements of the crimes and any conclusion therefrom that they are crimes for which it is not possible for a body corporate to be responsible.
In the light of the modern cases which have been prepared to hold corporations liable for criminal liability, directly, by the development of the doctrine of identification (Tesco Supermarkets), by attribution based on statutory interpretation (Meridian Global Funds Management) and the extension of corporate criminal responsibility for crimes such as manslaughter, it may be difficult to see why one should find any contrary intention for the purposes of the Criminal Procedure Act, s10(1) in provisions of the kind discussed in argument here.
The categories of offences for which a company cannot be convicted have been significantly confined in the development of the common law since the middle of last century. The old view was that any requirement of a guilty mind or mens rea meant that, generally, a corporation aggregate could not be guilty of a criminal offence: Halsbury’s Laws of England (2nd Ed) Vol 8 p111. The responsibility for crime, it was said, presupposed understanding and an act of will which a corporation could not have: see the discussion in Welsh RS op cit p347 and Edgerton HW “Corporate Criminal Responsibility” (1926-27) 36 Yale LJ 827 at 827-832. On this view, a body corporate could only be guilty of a statutory offence which by its terms made the body corporate criminally responsible for the acts of humans. Three cases in 1944 (two of the English Court of Criminal Appeal) rejected this approach: DPP and Kent & Sussex Contractors Ltd [1944] KB 146 (the provision relevantly being, “with intent to deceive, made use … of a document which was false in a material particular”); R v ICR Haulage Ltd [1944] KB 551 (the offence being common law conspiracy to defraud); and Moore v Bresler Ltd [1944] 2 All ER 515 (the provision relevantly being “with intent to deceive … make use of … any … document which is false in a material particular…”). These cases did not rest on any theory of vicarious responsibility. As explained by Welsh RS op cit at pp347-350, the place of vicarious liability in criminal responsibility was limited to such areas as public nuisance, criminal libel and statutory offences. Certainly in the last category, as made plain in Meridan Global Funds, corporate criminal responsibility depends significantly upon and involves a matter of statutory interpretation; see also R v Birmingham and Gloucester Railway Company (1842) 3 QB 223 and R v Great North of England Railway (1846) 9 QB 315.

In R v ICR Haulage, there was a recognition that the requirement of a guilty mind could be attributed to a company. Though Lennard’s Carrying was not referred to by Stable J (giving the judgment of the Court) his reasons reflected (see particularly [1944] KB at 559) the distinction made by Lord Haldane LC in Lennard’s Carrying between the action of a servant or agent and the action of someone who can be identified as the company itself. This distinction also lay at the heart of Lord Caldecote’s reasons in DPP v Kent and Sussex Contractors Ltd [1944] KB at 161 and 155-156.
The notion of identification of those persons who will be identified as the company as its directing mind and will was, of course, developed and discussed in Tesco Supermarkets v Nattrass. It is unnecessary for present purposes to discuss that decision or the discussion and development of the principles of attribution of human acts and intent in Meridian Global Funds. See generally, Nationwide News Pty Ltd v Naidu; Security Pty Ltd v Naidu [2007] NSWCA 377. It is sufficient to say that it can be accepted that a company can be convicted of a crime requiring specific or malicious intent.
What of a crime of intentional violence? The apparent disapproval of the decision in R v Cory Bros & Co Ltd [1927] 1 KB 810 by the Court in R v IRC Haulage and the cases that permit the conclusion that a company can be guilty of manslaughter enable it to be concluded that a company can be criminally responsible for a crime of violence. Nevertheless, one still needs to ask whether a corporation can be guilty of a crime of intentionally inflicting violence or whether this is such a crime which, of its nature, is only capable of being committed by an individual. Various offences have been so characterised. In R v Birmingham and Gloucester Railway Company (1842) 3 QB at 232, Patteson J referred to felonies or crimes involving personal violence; in R v Great North of England Railway (1846) 9 QB at 326, Lord Denman CJ referred to treason, felony, offences against the person or for acts of immorality; in South Hetton Coal Co v North-Eastern News Association [1894] 1 QB 133 at 141, Lopes LJ referred to murder, incest, adultery, corruption and assault; in R v Cory Bros & Co Ltd, Finlay J referred to the felony of manslaughter and misdemeanours involving personal violence. See also to like effect US v Kelso 86 F 304 (1898) and People v Rochester Railway and Light Co 195 NY 102 (1909).
The justifications for many of these older statements must now be seen to be removed by the more recent cases to which I have referred. The place of monetary punishment in the Crimes (Sentencing Procedure) Act, s16, the development of the law on the availability of attribution of specific mental state and of acts to the company, and the recognition that bodies corporate can be responsible for at least some crimes involving violence (such as manslaughter) need also to be recognised.
The identity of the offences that might be considered, from their very nature, not capable of commission by a company (and thus exhibiting a contrary intention for the purposes of the Criminal Procedure Act, s10(1)) must now be narrow. Bigamy is often given as the first example : see R v ICR Haulage at 554. This is sometimes said to be so because a company cannot marry someone: Pinto A and Evans M Corporate Criminal Liability (Thomson/Sweet & Maxwell 2003). This reasoning focuses on the inability of the company to do the act in question. This is an unsatisfactory basis for the conclusion. Notions of identification or attribution aside, a company can do no act and thus cannot negligently kill someone, yet it can be guilty of manslaughter. More relevantly, it seems to me, the crime of bigamy can be seen to be one which can only be committed in a personal capacity. The lack of any possibility of commission of the relevant act in a capacity for a company would mean that bigamy could never be attributed to, or the actor be identified with, a company in the relevant sense.
It is sometimes said that perjury falls into the same category as bigamy. Undoubtedly, a company cannot physically take an oath, but an oath may be taken by someone acting in furtherance of the interests and affairs of a company with a position, and in circumstances, to permit the conclusion that the person acting was acting as the company. In Odyssey Re (London) Limited (formerly Sphere Drake Insurance plc) v OIC Run Off Limited (formerly Orion Insurance Co plc) [2000] EWCA Civ 71 the issue arose whether the perjured evidence of a witness could be attributed to the company and thus to the party to the proceedings. The context was whether the judgment in which the evidence was given could or should be set aside by reason of the fraud of the party, that is the company. In concluding that the evidence was the company’s evidence, Nourse LJ had recourse to the test adopted by Eveleigh J in R v Andrews-Weatherfoil Ltd [1972] 1 WLR 118 at 124:
It is necessary to establish whether the natural person or persons in question have the status and authority which in law makes their acts in the matter under consideration the acts of the company so that the natural person is to be treated as the company itself.
Brooke LJ came to the same conclusion. Buxton LJ disagreed, not with the proposition that the company could be attributed with the lie of the witness, but because on the facts, the witness was not someone whose perjury should be attributed to the company.
Sexual offences, such as rape and incest, may be able to be viewed, like bigamy, as crimes which cannot be committed in a capacity furthering the interests of a corporation. But this too is perhaps doubtful as a matter of theory, although, no doubt as a practical matter, it is unlikely that circumstances will arise in which such crimes would be able to be attributed to a company. As Welsh RS op cit at 364 and Winn CRN “The Criminal Responsibility of Corporations” (1927-1929) 3 CLJ 398 at 415 discussed, it would have been conceivable that, for instance, a company having the functions and role of the East India Company with its wide powers and governmental role could be held criminally responsible for acts of this kind. In a modern day setting, one might well be able to envisage a commercial enterprise engaged in organised violent activities which may lead to the same possibility. That one can easily conclude that it is unlikely that circumstances surrounding murder or rape would give rise to questions of attributed criminal responsibility of a company of itself does not lead to the conclusion that this could never be the case.
The same is true in relation to a lesser crime of violence. The facts here admit the ready and common sense conclusion that the possible application of some violence was part of the duties and responsibilities of the defendant company. Mr Bingle was (lawfully) armed. I do not see from any aspect of the modern cases any reason why the crimes identified earlier, involving as they do what can be said to be acts of violence, reveal from their very nature a contrary intention to their application to bodies corporate for the purposes of the Criminal Procedure Act, s10(1).
If the Criminal Procedure Act, s10(1) were not to be applicable, my conclusions would be the same in the light of the extended meaning of the word “person” in the Interpretation Act, s21.
For these reasons I agree with the conclusion of Ipp JA that the Civil Liability Act, s54(2) could apply to the defendant and thus the matter should be remitted to the District Court for rehearing.
BEAZLEY JA: I have had the advantage of reading in draft the reasons of Allsop P and Ipp JA. Having regard to the detailed examination of the facts and the law in both judgments, I propose to make brief observations on two matters only. I otherwise agree with the judgment of Ipp JA and with his Honour’s orders.
The first matter relates to the question whether Mr Bingle was the directing mind and will of the defendant. Whilst I agree with his Honour’s statement of principle, I do not consider that this Court should reach a conclusion as to whether Mr Bingle was the directing mind and will of the defendant on the occasion of the incident which gave rise to the appellant’s claim. In this regard I agree with the reasons of Allsop P. The issue was not explored at trial and there may be factual considerations that may lead to a contrary conclusion.
The second matter relates to s 10(1) of the Criminal Procedure Act 1986. That provision may also be relevant to the defendant’s liability. However, as Allsop P explains, no contrary intention to the imposition of corporate criminal liability is apparent in respect of the crimes identified as those that might be applicable in this case: see [27] above.
IPP JA:
The plaintiff’s claim
At about 4:00 am on 23 June 2003 the respondent, to whom I shall refer as the plaintiff, broke into and entered the Earlwood Bardwell Park Sports Club. He was in the company of three others. They intended to steal cash from the Club’s gambling room.
At the time, David Arthur Bingle, a security guard, was in the Club. He was the managing director and sole employee of the appellant, to which I shall refer as the defendant. Mr Bingle was guarding the premises in the course of his employment with the defendant.
Shortly after the plaintiff entered the Club, Mr Bingle fired a Magnum revolver at him and wounded him. Mr Bingle then fired at the plaintiff’s accomplices, who fled. The Magnum carried six bullets. Mr Bingle fired several shots. He did not know how many.
On the challenged findings of the trial judge, O’Toole DCJ, Mr Bingle proceeded to point the Magnum at the plaintiff’s head and chest and to press the trigger repeatedly. He was then only a couple of metres away from the plaintiff. The cartridges in the gun were, however, spent. The plaintiff heard repeated clicks, caused by Mr Bingle pressing the trigger over and over again.
Mr Bingle attempted to eject the spent cartridges and fumbled in his pockets for bullets. While he was doing this, the plaintiff ran out of the Club and jumped into a car that he and his accomplices had parked in the parking area. As the car drove away, Mr Bingle fired a shot at it and then a further shot that caused the rear window of the vehicle to shatter. Mr Bingle admitted only the latter shot. The car then drove away from the scene.
The plaintiff claimed damages for personal injuries from the defendant (and not Mr Bingle personally). He relied on two causes of action, namely, negligence, and/or alternatively “assault and/or battery ... on the part of the defendant through its servants, agents and/or sub-contractors”.
O’Toole DCJ dismissed the plaintiff’s claim in negligence and that cause of action played no part in this appeal. Her Honour, however, upheld the cause of action based on assault and battery and awarded the plaintiff damages amounting in total to $185,267. The award of $185,267 included a sum of $60,000 for non-economic loss, $60,000 for aggravated damages and $60,000 for exemplary damages.
The bullet that wounded the plaintiff perforated his erector spinae, adjacent to his L3/4 disc, and his anterior left flank. The plaintiff underwent surgery to debride the wound. Later he again had to be treated surgically when septicaemia developed in the wound.
The judge found that the plaintiff had “recovered spectacularly” from his physical injuries and his “residual symptoms [were] mild and intermittent”. The plaintiff, in addition to his physical injuries, experienced depression, episodic fear and anxiety from his experience but these gradually decreased. He appears to have suffered from post-traumatic stress disorder.
The defendant appeals against her Honour’s judgment. Broadly speaking, the defendant challenges certain crucial factual findings made by the judge, argues that the judge failed properly to consider and apply the provisions of Pt 7 of the Civil Liability Act 2002, failed properly to engage with the defence, and failed to give adequate reasons.

The pleadings

The amended statement of claim alleged that the defendant carried on business as the provider of security services at the Club. This was not disputed. The amended statement of claim alleged, in effect, that Mr Bingle was a servant or agent of the defendant and asserted that, “at all material times the defendant was [vicariously] liable for the actions of [Mr Bingle]”. In response to this allegation, the defendant admitted “it was vicariously liable for same”.

The amended statement of claim pleaded that Mr Bingle fired a shot that wounded the plaintiff, and this was not in dispute. The amended statement of claim alleged that after that shot, the defendant, in effect through Mr Bingle, “again fired at the plaintiff whilst the plaintiff was standing still with his hands in the air, however the firearm did not discharge”. The amended statement of claim alleged further that the plaintiff ran from the scene and during the course of his escape was shot at several more times, in effect, by Mr Bingle. In addition it was alleged that Mr Bingle fired a bullet through the rear windshield of the vehicle in which the plaintiff was travelling and another bullet which hit the boot of that vehicle. Thus, the amended statement of claim relied on the initial shooting and wounding, attempts to shoot the plaintiff that failed because there were no bullets left in the gun, and two shots that were fired as he was escaping from the scene. The plaintiff alleged that these actions “constituted an assault and/or battery on the plaintiff by the defendant through the actions of its servants, agents and/or sub-contractors”.
The defendant denied the plaintiff’s allegations referred to in the previous paragraph.
The plaintiff did not attempt to plead the three incidents as separate torts, which they clearly were, as was rightly conceded by Mr Barry QC, who together with Mr Canceri, appeared for the plaintiff. The defendant did not take the point that the three incidents relied on by the plaintiff were three separate torts and that different considerations applied to each, and the trial was run on the basis that it was not necessary to differentiate between them. The judge approached the case in the same way. This has implications with which I deal below.
In the defendant’s amended defence the defendant asserted, in the alternative to its denials, that it “specifically relies upon the provisions of s 52 of the Civil Liability Act 2002 as amended.”

In the further alternative, the defendant alleged:
(“any injury to the plaintiff) was occasioned at a time when the [p]laintiff was in the process of committing a criminal offence by breaking into and trespassing upon the premises … with intent to rob same. The [d]efendant therefore says that the [p]laintiff should not be entitled to any damages in respect of any injury sustained (if any) and in this respect the [d]efendant relies upon s 54 of the Civil Liability Act 2002 as amended.”
The plaintiff did not file a reply to these defences.
The plaintiff’s version

The plaintiff testified that, together with three others, he drove to the Club at about 4:00 am on the morning in question with the intention of breaking and entering and stealing money from the poker machines inside. He took with him a crowbar.
After the car in which he had travelled to the Club had been parked in the Club’s car park, the plaintiff emerged with a T-shirt around his face to prevent security cameras from detecting his facial features. His accomplices were similarly masked.
The plaintiff used the crowbar to open the door to a fire exit, and, in doing so, made a loud noise. Inside the Club the lighting was dim, “not all the lights were active”. The plaintiff took three or four steps into the foyer, turning towards the right so as to enter the gambling room where the poker machines were to be found. He suddenly heard two loud noises, or bangs, and felt that he had been “pushed in the back”. He fell to the ground on his right hand side and landed on his stomach.
The plaintiff got to his feet and put his hands in the air. He saw the security guard (Mr Bingle) who was then about two steps in front of him and between him and the front of the main entrance doors. Mr Bingle was standing with his side facing the plaintiff. He was looking out into the car park aiming his gun into that area.
The plaintiff had his hands in the air and he yelled out “Don’t shoot, I’m not armed.” Mr Bingle swivelled around so that he faced the plaintiff and pulled the trigger two or three times, but the gun did not fire. The Magnum was pointed directly at the plaintiff’s upper body towards his head and chest. The plaintiff was terrified and thought that he was going to be killed. As Mr Bingle pressed the trigger, the barrel spun and the plaintiff heard the gun clicking. The plaintiff said that when Mr Bingle was looking at him, his eyes were “all glassy and like pins, just like focused”.
Mr Bingle opened the gun to reload and the plaintiff fled, yelling, “Why did you have to shoot us?” The plaintiff ran straight past Mr Bingle, and jumped into the car in which two of his accomplices were sitting. He climbed into the driver’s seat and, as the car started to move, he heard another shot. As the car started to accelerate, there was another shot and the back window shattered. The plaintiff managed to get away from the scene, picking up the third accomplice without further incident.
The plaintiff said that it would “probably be lucky” if a minute had passed from the time that he entered the Club to the time he left to get to his car. He had no idea where his accomplices were from the time he entered the Club until he saw them again at the car because, as he said, “they were behind me”. He expected his accomplices to come into the Club immediately behind him after he gained entry and as he entered he assumed that they were behind him.
Mr Bingle’s version
Mr Bingle was a licensed security guard and was licensed to acquire firearms. He said that he started “my company” (the defendant) in about 2000 and acquired two firearms, a Glock automatic and a Magnum revolver. It was a condition of his job at the Club that he carry a firearm and, on the morning in question, he had the Magnum with him.
By 2003 the defendant was providing security services at the Club about five nights a week. He, personally, provided those services and commenced duties at 8:00 pm each evening. He would finish at about 7:30 am each morning. The Club had been robbed a number of times and for that reason he carried a duress alarm around his neck. This was a button that when pressed would alert the police who were supposed to respond in two to three minutes.
In February 2003, as Mr Bingle was on duty at the Club, he heard a “great big thud”. He turned around and three people wearing masks ran towards him and crash tackled him. He was carrying the Glock but was unable to draw it. The intruders took the gun from him, pointed it at his head and tried to force him to open the office door where all the money was kept. This attempt failed as Mr Bingle did not have the key. The intruders opened the door with a crowbar and sledgehammer. Mr Bingle had pressed the duress alarm and the police arrived after about six minutes. The intruders, by then, “were long gone”.
At about 4:00 am on 23 June 2003, Mr Bingle observed a car drive into the Club car park. This was an unusual event at that time of the morning. In addition, as soon as the car entered the car park, it turned off its headlights. Mr Bingle was in the Club bistro when he observed this occurring. The bistro was to the left of the foyer as one came through the entrance doors of the Club. I have already mentioned that the gambling room (where the poker machines were situated) was to the right of the foyer.

Mr Bingle crouched down in the bistro so that he would not easily be seen. He said that he was standing in a concealed position because he was afraid. That is why he only showed himself when the intruders came in. He saw someone approach his car in the car park and observed that this person had a mask or something covering his head. He pressed the duress alarm. He heard a noise at the front door and pressed the alarm again.

Mr Bingle proceeded to move from the bistro into the foyer and, to his surprise, observed three people inside, not one. He had only expected one. He noticed that, to gain entry, they had opened a fire door. One of the persons had a crowbar.
According to Mr Bingle, he said, “Halt. Security”, but “they moved towards me”. He was then standing in the doorway between the bistro and the foyer. He had his gun out. He had taken it out when he heard the door being forced open.
The men continued to move towards him and he warned them that he would shoot. Nevertheless, they still moved forward. He then fired one shot that he believed hit one of the men. He turned his attention to the other two who were near the front door. He said that they looked as if they were coming towards him so he tried to shoot them as well. The two men were however, able to leave the foyer without being struck. They were within Mr Bingle’s range of vision for about thirty seconds to one minute. The police arrived after about six minutes.
In cross-examination, it was put to Mr Bingle that he shot the plaintiff in the back but he denied this.
He had shot so often that he came to a point when, on pulling the trigger, the gun “just clicked”. He tried to reload. He said that he was “very nervous” and he “fumbled around”. He said, “I wanted to get another bullet in the chamber because I was afraid they weren’t finished to attack me”.
He said that he succeeded in getting only one bullet into the gun and fired one shot at the car but missed it.
He was asked directly in examination in chief why he fired his gun the first time, and he said: “Because they ignored two warnings. And were still advancing towards me”. He said: “I thought I was going to die if they got hold of me”. He insisted that the persons were coming towards him and said: “Otherwise I would not have shot”.
Under cross-examination, Mr Bingle agreed that, when the car turned its lights off, it aroused his suspicion. He was asked whether he was waiting “for them to break in”. He replied “I was only expecting one person, then I thought I had a stronger case if he was inside the Club”. He explained that he meant a stronger case “to arrest him”. He said: “Well you can get them with break and enter if they actually come in. You can’t get them with break and enter if they haven’t actually entered the Club”.
He was asked why he did not go out to the front door and shine his torch. He replied: “Well that’s what a previous guard did and they kept coming back and robbing the Club”.
He was asked: “What about if you switched on the light and shone your torch and presented yourself before they’d entered the Club”? He replied: “They probably would have shot me through the glass door”.
The following exchange occurred:
“ Q.           So are you saying that they were carrying firearms?
A.           They may have been.
Q.           You just assumed that didn’t you?
A.           You usually don’t come with nothing.”
It was put to him that no one else was firing a weapon apart from him, and he replied, “No, but I didn’t know that at the time.”
He asserted that he was “scared”. He said that he did not know whether the persons were his assailants from the incident that had occurred some four months before who were returning, but said that it was possible. He did not know who they were because they were disguised.
He said that when he started shooting his revolver was fully loaded. By the time the intruders had left the foyer his gun was empty. He again fired his gun outside the Club when he was standing at the bottom of the steps. He denied that he fired more than one shot at the vehicle as it was leaving.
It was put to Mr Bingle that he pointed his weapon at the plaintiff and pressed the trigger a number of times but no bullets were discharged. He denied that. He asserted that the plaintiff never had his hands in the air and never said, “Don’t shoot”.

According to Mr Bingle, had the plaintiff got into the poker machine area - because there was access from that area into the bistro – he could have come around behind him (i.e., Mr Bingle) while the other two men were at the door. Were that to have occurred, Mr Bingle would have had one intruder behind him and two in front of him and he would have been in “more trouble”. He repeated, “If I let him get through [the poker room] there would have been one behind me and two in front of me”.
It was put to him that at no stage during the events of the morning of 23 June 2003 did he believe that what he did was necessary in self-defence, but he replied, “It was very necessary”.
A statement made by Mr Bingle to the police was put into evidence. The statement is in substance consistent with his oral evidence save that, in it, he did not mention the men coming towards him. In other words, he did not in the statement explain his conduct in shooting at the men by reference to them moving in his direction.
The statement contains the following paragraphs:
“9. I heard them breaking in … , I pressed my duress alarm to call for assistance. I did not hear glass being broken, but heard the sound of the door being levered open. I then stepped into the foyer and was surprised to see three people there.
10. One was on the far side of the reception desk and the other two were just inside the front door. I said, ‘Halt. Security’. Because of the incident back in February, I already assumed that they may have been armed. I fired my gun. I think I fired four shots, but I don’t know. I was in fear of my life”.
In the statement Mr Bingle described the clothes of the first person he saw and said, “When this one entered, he was one of the two standing just inside the front door”. He described the second person he saw and said, “When I saw this one inside, he was standing on the far side of the reception desk from where I was” (this was the plaintiff). He said the third person “was also standing just inside the doorway when I saw him”. As I have mentioned, Mr Bingle made no reference to the intruders moving after he first saw them (but, of course, they obviously did).
The application of Pt 7 of the Civil Liability Act
It is clear from her reasons that the trial judge assumed that Pt 7 of the Civil Liability Act applied to the plaintiff’s claim. In oral argument, Mr Barry did not submit that her Honour erred in this respect.
Section 51(3) of the Civil Liability Act provides:
“This Part does not apply to civil liability that is excluded from the operation of this part by s 3B.”
Section 3B(1) provides:
“The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:
(a)civil liability in respect of intentional act that is done with intent to cause injury or death … - the whole Act except:
(i) …, and
(ii)Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death.”
It is not in dispute that the plaintiff’s conduct in breaking and entering the Club constituted a criminal offence. The defendant had raised Pt 7 as a defence. Section 3B(1)(a)(ii) exempts Pt 7 (in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death) from the exclusionary provisions contained in s 3B(1)(a). Accordingly, her Honour was correct in assuming that Pt 7 applied to the determination of the plaintiff’s claim.
The primary judge’s reasons for regarding Mr Bingle’s evidence as “unreliable”

Under the heading “The Evidence”, O’Toole DCJ said that the plaintiff “was frank with counsel and court”. She said (at [16]):
“There are material inconsistencies in Mr Bingle’s evidence. There are gross discrepancies between his deposition, his sketch plan, the speculative statement made to police (exhibit 8) and data he recorded haphazardly in exhibit 10. Part of Mr Bingle’s evidence is implausible.
Mr Bingle reacted to cross-examination with inappropriate mirth. His elaborate facial expressions, unnaturally lengthy periods of silence during cross-examination and apparent difficulty reading, with and without his spectacles, conveyed the impression that his eyesight and whatever he remembers of 23 June 2003 are unreliable.”
There are various difficulties in determining what her Honour meant by the “material inconsistencies in Mr Bingle’s evidence.”
The Judge did not identify the “gross discrepancies” to which she referred. Mr Deakin QC, who together with Mr Stockley and Ms Beck appeared for the defendant, drew attention to the following exchange during closing addresses:
“Her Honour: This man is, on his own description – I think his own statement, which was made after several hours in the police station, I think he said, or a few hours, something to that effect – is materially inconsistent with what he said in oral evidence.
Stockley:Perhaps your Honour ought to direct my attention to the particular inconsistency with which you’re concerned.
Her Honour: I infer that his behaviour was furtive. He wanted to catch these people, for what – I mean perhaps he thought he was defending - - ”.
As Mr Deakin submitted, her Honour indicated neither to counsel appearing for the defendant at the trial (even when specifically asked to identify the inconsistencies she had in mind) nor in her reasons what the material inconsistencies were which led to her view of Mr Bingle’s credibility.
Mr Barry submitted that her Honour’s reference to Mr Bingle’s “deposition” was intended by her to mean his oral evidence. I think that explanation is correct. The word is otherwise unintelligible. In my view the only material discrepancy between Mr Bingle’s oral evidence and his police statement is the fact that, in his police statement (as opposed to his oral testimony), he made no reference to being induced to shoot because the men were moving towards him.
Mr Bingle’s sketch plan shows him in the bistro. I understood Mr Barry to submit that the sketch plan was inconsistent with the oral evidence because in the oral evidence Mr Bingle said he fired when he was in the foyer but the sketch plan shows that he was in the bistro. In addition, photographs show a bullet hole in the door leading from the bistro to the foyer, leading to the inference that he shot when he was standing in the bistro and not when he was standing in the foyer.
In cross-examination Mr Bingle agreed that when he drew the diagram he wanted to indicate to the police the position “of these people” when he started shooting. Nevertheless, it was not put directly to Mr Bingle that he was in the bistro and not in the foyer when he started shooting and the implications of the photographic evidence in this respect were also not put to him. Whether her Honour had these matters in mind is not at all clear because she said nothing about them.
It is also an open question, assuming that Mr Bingle’s oral evidence is indeed inconsistent with his sketch, whether these matters amount to a material inconsistency. Were Mr Bingle to have been in the bistro when he shot the plaintiff, he would have been further away from the plaintiff and the other intruders than were he to have been in the foyer. Perhaps it could be said that, for that reason, he should have been less frightened than he was. That is a debatable issue. There might only be a metre or two in any discrepancy that might arise. The discrepancy does not appear to have been debated at trial and was not discussed in her Honour’s reasons. The weight, if any, that her Honour attached to it is unknowable.
Mr Barry submitted that the speculative statement Mr Bingle made in his police statement, to which her Honour referred, was his assumption that the men were armed. Of course, that statement is speculative, but the assumption Mr Bingle made is not difficult to understand. How this assumption reflects adversely on Mr Bingle’s evidence is not apparent, nor – again – is the weight, if any, that her Honour attached to it.
The data Mr Bingle “recorded haphazardly in exhibit 10” appears to be the dates on which he acquired the Glock and the Magnum respectively. It may be that those dates were incorrect (Mr Bingle’s memory of when he in fact acquired the weapons was uncertain) but this was an entirely irrelevant matter as far as the issues at the trial were concerned.
The videotape from the security cameras
A security video camera was operating in the Club from the time that the plaintiff entered until the time that he left. According to the videotape evidence, the plaintiff was first observed in the foyer at 4:21:38. At 4:21:55 the videotape showed a figure in a dark top and light trousers (who we were informed was the plaintiff) heading towards the fire exit. It seems that more or less at about 4:21:55 the plaintiff was touching the door of the fire exit. Counsel for the plaintiff at trial suggested that the videotape showed this person at that stage with his hands in the air, but her Honour said “right arm abducted to about 80 degrees, elbow flexed, that’s what I can see”. It was suggested to her Honour that the left arm appeared to be raised as well. The judge replied, “I hear what you say”.
There are three relevant features of the videotape evidence. Firstly, the first time the plaintiff was recorded on the camera was at 4:21:38 when he entered the foyer. About 17 seconds later he was shown touching the door of the fire exit. This suggests that over this brief period the shooting leading to the wounding and the episode when Mr Bingle shot the empty gun at the plaintiff, occurred. Secondly, the judge only saw the plaintiff with his right arm raised and not both arms. Thirdly, the camera did not record the plaintiff falling to the floor, wounded, nor did it record the incident alleged by the plaintiff when Mr Bingle was said to have pointed the Magnum at his upper torso and pulled the trigger four times (i.e. when only clicks were heard).
The brevity of the period from the time Mr Bingle first saw the plaintiff in the car park until the plaintiff left the foyer emphasises the improbability that Mr Bingle acted in a considered and premeditated way. It is also cogent evidence that Mr Bingle’s conduct was largely instinctive. In addition, the videotape casts doubt on the plaintiff’s allegation that he had both hands in the air.
The fact that the videotape does not show Mr Bingle unsuccessfully trying to shoot the plaintiff seems to be of little moment as it is common ground that the plaintiff fell to the floor after he was wounded and the camera did not record that either. I infer that the camera was not able to photograph certain areas of the foyer where some of the relevant events occurred. It may be that the camera was not able to photograph the plaintiff with both his hands in the air. None of these matters was explored in evidence or her Honour’s reasons.
Difficulties with the primary judge’s factual findings
After referring to the parties respective versions, O’Toole DCJ said (at [21]), “Attributing appropriate weight to vague, conflicting, unsatisfactory and unchallenged evidence, I find the following facts”, and she proceeded to set out the facts she so found.
Her Honour did not say in her reasons that she disbelieved all of Mr Bingle’s evidence. It seems from her factual findings that she believed some of it. For example, her Honour accepted Mr Bingle’s evidence as to his conduct before the plaintiff entered the Club and even for part of the time the plaintiff was in the foyer. Furthermore she observed (at [16]):
“Mr Bingle’s speech impediment reinforces one’s inference from the remainder of the evidence that any warning he gave before shooting Mr Brilley was belated or was ineffectual.”
This appears to be an acceptance of Mr Bingle’s evidence that he gave a warning before shooting the plaintiff even though the plaintiff denied that he had been given one. This is not an insignificant finding in Mr Bingle’s favour. The judge accepted that, when Mr Bingle was first able to see into the foyer, he was surprised to find more than one person there.

Accordingly, it cannot be inferred that her Honour regarded all of Mr Bingle’s evidence as vague, or unsatisfactory. As her Honour did not state what particular evidence she regarded as vague, as conflicting, and as unsatisfactory, it is difficult, and at times impossible, to discern from her reasons what evidence the judge regarded as deserving of these epithets. It is also not possible to discern what weight her Honour attributed to any particular piece of evidence that fell within these categories. Accordingly, it is not possible to discern, in any reasonably comprehensible way, all the elements of the reasoning process that led to her Honour finding the facts that she did.
O’Toole DCJ’s failure to identify the material inconsistencies she believed to exist, the virtual impossibility of discerning what inconsistencies she had in mind and in understanding why her Honour regarded them as material, and the lack of reasons explaining why parts of Mr Bingle’s evidence were rejected while others were accepted, are basic problems with her Honour’s credibility findings as a whole.
Her Honour made no mention of the videotape evidence. I have drawn attention to its relevance. In my view the judge’s omission to refer to it suggests that she did not take it into account. Such an omission would, alone, be a material error in the fact-finding process.

The facts found

The judge accepted (at [35]) Mr Bingle’s evidence that he saw the plaintiff’s vehicle enter the car park, and that he took out his gun and crouched on the floor of the bistro to conceal himself. She accepted that Mr Bingle glimpsed a figure with a muffled face peering into his own vehicle. She found Mr Bingle moved towards the entrance of the bistro and stood in the bistro near the entrance to the lobby. Her Honour accepted that Mr Bingle wished to hear the break in without being seen, because he thought there would be a stronger case against them for “break and enter” if they actually came inside.
The judge found (at [36]) that, after Mr Bingle heard the noise of the crowbar on the fire exit door, and while he was standing in the bistro near the entrance to the lobby, he held the Magnum in both hands, with the intention of firing it. He shot the plaintiff as the latter was walking across the lobby towards the gambling room.
Her Honour found that the following then occurred (at [37]):
“Mr Bingle stepped into the lobby. He was surprised to see another person/s near the fire exit. Mr Bingle ‘opened fire’ towards the fire door. Mr Brilley’s accomplice/s fled. Mr Brilley stood, raised his hands in the air and yelled: ‘Don’t shoot, I’m not armed’. Mr Bingle turned, pointed the magnum at Mr Brilley’s head and chest and pressed the Magnum’s trigger repeatedly. The Magnum clicked repeatedly. … Mr Brilley seized the opportunity: he ran across the lobby through the fire exit door and down the Club’s front steps ….”
The judge held (at [38]) that as the plaintiff was driving away he heard a shot. As he started to accelerate there was another shot and the back window of his vehicle shattered.
The primary judge’s “conclusions”
The observations of O’Toole DCJ set out under this heading are contained in her Honour’s reasons under the heading “Conclusions”.
After he had to some extent recovered from his injuries, the plaintiff was arrested and charged with aggravated breaking and entering with intent to commit the offence of stealing from the Club. He pleaded guilty to the offence. Woods DCJ sentenced him to two and a half years imprisonment with a non-parole period of 18 months for the offence. Her Honour, in commenting on the sentencing remarks of Woods DCJ, said (at [18]):
“Reliable evidence in Mr Brilley’s civil claim undermines the propositions which his Honour accepted: that Mr Bingle ‘identified himself as security’, that Mr Brilley ‘did not comply with [Mr Bingle’s] direction to surrender’ and that Mr Bingle was justified in discharging the Magnum as Mr Brilley ‘drove off …’ “.

Her Honour said (at [55]):
“Cumulatively, Mr Bingle’s intentional actions on 23 June 2003 in wounding Mr Brilley, in attempting to shoot Mr Brilley repeatedly at short range, and in shooting at [the plaintiff’s vehicle], caused Mr Brilley’s serious injuries and the recurrent emotional distress. That conduct, in the course of Mr Bingle’s duties to Presidential Security, was motivated by his callous intention to cause injury. None of Mr Bingle’s actions was in self defence or was in defence of the Club’s property. Mr Bingle behaved with reckless indifference to his own safety, to Mr Brilley’s safety, to the accomplices’ safety and to neighbouring residents’ safety. Mr Bingle’s conduct probably constitutes an offence/s as defined in s 54 of the Civil Liability Act.”
Her Honour proceeded (at [56] - [57]):
“The evidence persuades me that the circumstances of Mr Brilley’s case are exceptional and that this Court’s failing to award him damages would be harsh and unjust. Therefore it does not seem to me that the Civil Liability Act precludes this Court’s (sic) awarding Mr Brilley damages for non-economic loss.
It seems to me the Court should award Mr Brilley aggravated damages for his pain, outrage, acute and recurrent emotional distress caused by Mr Bingle’s arrogant malevolent conduct. The Court should award Mr Brilley exemplary damages to punish, to deter and to convey the Court’s disapproval of Mr Bingle’s callous, deliberate conduct.”
Section 54: the elements of self-defence and the onus of proof
Section 54 relevantly provides:
“(1)A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that:
(a)the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and
(b)that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage.
(2)This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence).
Note. Sections 52 and 53 can apply to prevent or limit recovery of damages even though the defendant’s conduct constitutes an offence.
(3)A serious offence is an offence punishable by imprisonment for 6 months or more.
(4)….
(5)This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned.”
It was not in dispute that the injuries to the plaintiff occurred at the time of, or following, conduct on his part that constituted a serious offence and that conduct contributed materially to his injuries. Thus the elements of s 54(1) were satisfied.
Sub-section (2) of s 54 provides that the section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the injury concerned constitutes an offence (whether or not a serious offence). O’Toole DCJ found (at [55]) that “Mr Bingle’s conduct probably constitutes an offence/s as defined in s 54 of the Civil Liability Act.” Her Honour did not specify which conduct of the defendant (not Mr Bingle) constituted “an offence/s as defined”. She did not identify the “offence/s” concerned. The defendant challenged the findings her Honour so made.
As I have mentioned, the plaintiff did not file a reply averring that s 54(2) applied and was an answer to any reliance by the defendant on s 54(1). Proper practice required such a reply. Neverthless, the judge’s findings that none of Mr Bingle’s actions was in self-defence or was in defence of the Club’s property, and that his conduct “probably constitutes an offence/s as defined in s 54 of the Civil Liability Act”, demonstrate that s 54(2) was in issue at the trial.
Mr Barry accepted that at trial the plaintiff only contended that Mr Bingle had committed an assault. In the circumstances, it was not open to the primary judge to make findings (which she appears to have done) that Mr Bingle had committed offences other than assault. Her Honour did not find specifically that Mr Bingle had committed a criminal assault. She made findings that he had committed an unidentified number of unidentified offences.
Plainly, Mr Bingle’s act of shooting and wounding the plaintiff was capable of constituting the offence of assault occasioning actual bodily harm. This offence is defined by 59(1) of the Crimes Act 1900 as follows:
“(1)Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years.
…
In R v Lynsey [1995] 3 All ER 654 Henry LJ, in delivering the judgment of the English Court of Appeal, Criminal Division, said (at 656):
“In the courts, assault has generally become synonymous with battery, that is to say when the word assault was used it normally meant the intentional use of unlawful force to another’s person without his consent used.”
The only distinction between the offence created by s 59(1) and common assault (which is an offence under s 61) is that under s 59(1) the causing of actual bodily harm is required. Thus, in effect, s 59 is based on the usage recognised in R v Lynsey.
According to Brent Fisse, Howards Criminal Law, 5th ed (1990) The Law Book Company, Sydney, 1990 at 138 “[i]t is not easy to find a statement of the common law of assault which is both authoritative and precise”. A neat statement of the elements of the crime, however, can be found in the judgment of Lord Simon in Director of Public Prosecutions v Morgan [1976] AC 182. In discussing the nature of crimes of basic intent, his Lordship said at 216 - 217:
“I take assault as an example of a crime of basic intent where the consequence is very closely connected with the act. The actus reus of assault is an act which causes another person to apprehend immediate and unlawful violence. The mens rea corresponds exactly. The prosecution must prove that the accused foresaw that his act would probably cause another person to have apprehension of immediate and unlawful violence, or would possibly have that consequence, such being the purpose of the act, or that he was reckless as to whether or not his act caused such apprehension. This foresight (the term of art is 'intention') or recklessness is the mens rea in assault.”
Thus, the actus reus of common assault is an act which causes another person to apprehend immediate and unlawful violence without consent. The mens rea of assault requires either intention or recklessness. The offences under s 59 and s61 of the Crimes Act require no less.
In determining whether particular conduct of Mr Bingle (and the defendant) constituted the offence of assault, her Honour was required to consider and determine whether in relation to such conduct, Mr Bingle acted in self-defence.
The criminal law defence of self-defence is found in s 418 of the Crimes Act, which provides:
“(1)A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2)A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a)to defend himself or herself or another person, or
(b)to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c)to protect property from unlawful taking, destruction, damage or interference, or
(d)to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives them.”
As Howie J, after a careful review of the relevant authorities, explained in R v Katarzynski [2002] NSWSC 613, s 418 involves a two-stage inquiry. First, a subjective question is asked: is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself? The question is subjective because it focuses on what the person claiming self-defence actually perceived. If the answer to the first question is yes then, secondly, an objective question is asked: is there a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them?
By s 419 of the Crimes Act, in criminal proceedings the prosecution has the onus of proving, beyond reasonable doubt, that the accused person did not carry out the relevant conduct in self-defence. This is part of the “golden thread” which requires the prosecution to prove guilt beyond reasonable doubt and it is also a rule that protects the accused person’s right of silence. These considerations do not apply in civil proceedings. I see nothing in the Civil Liability Act that requires these criminal law notions to be applied to the potential riposte afforded by s 54(2) to a plaintiff who is met with an argument based on s 54(1).
By s 54(1), a court is “not to award damages” in respect of liability to which Pt 7 applies if the court is satisfied that the injuries to the plaintiff occurred at the time of, or following, conduct that, on the balance of probabilities, constitutes a serious offence on the plaintiff’s part which contributed materially to his or her injuries. Section 54(1) does not concern the liability of the defendant, it is directed against an award of damages, rather than the existence of a liability. It is a section that should be pleaded by the defendant as an answer to the plaintiff’s claim for damages. General principles of statutory construction, and fairness, lead to the conclusion that it is for the defendant to establish the matters in sub-paras (a) and (b) of s 54(1) that, by s 54(1), have to be proved to the satisfaction of the court. The section provides expressly that such proof is to be on a balance of probabilities.
Section 54(2) affords a plaintiff an answer to any reliance by a defendant on s 54(1). Save where a defendant raises self-defence as an answer to a plaintiff’s allegation that the relevant conduct of the defendant constitutes an offence, it is for the plaintiff to plead and prove that s 54(2) applies. Although the section makes no express mention of proof on a balance of probabilities, there is nothing to suggest that the usual rule in civil proceedings does not apply; the burden of proof on the plaintiff is on the balance of probabilities.
Where a defendant does raise self-defence to a plaintiff’s contention that the defendant’s conduct constitutes an offence, it is for the defendant to plead and prove that his or her acts, on which the plaintiff relies, were themselves performed in self-defence. The defendant, after all, is far more likely to be better equipped than the plaintiff to prove the elements of self-defence. The onus on the defendant will be on a balance of probabilities.
Section 52(2) of the Civil Liability Act is in precisely the same terms as s 418(2) of the Crimes Act. In my view, that has no bearing on the matters relating to burden of proof under the Civil Liability Act to which I have referred under this heading.
The primary judge’s treatment of s 54
As I have observed, in this case both s 54(1) and s 54(2) were in the ring (reliance on s 54(2) being based on the offence of assault having been committed by Mr Bingle). The primary judge dealt with s 54(2) by making, in essence, five findings. The first was that the “cumulative” effect of Mr Bingle’s “intentional actions” (which were “arrogant[ly] malevolent”) during the three episodes on 23 June 2003 caused the plaintiff’s injuries (including emotional distress). The second was that Mr Bingle’s conduct “was motivated by his callous intention to cause injury”. The third was that none of Mr Bingle’s actions was in self- defence or in defence of the Club’s property. The fourth was that Mr Bingle behaved with reckless indifference to the safety of himself, the plaintiff, the accomplices and neighbouring residents. The fifth was that “Mr Bingle’s conduct probably constitutes an offence/s as defined in s 54 of the Civil Liability Act.”
There are a number of serious problems with these findings.
As regards the first of these findings, I have earlier pointed out that each of the three incidents constitutes a separate tort. They were each essentially different. The first involved the infliction of a physical injury, the second involved Mr Bingle pointing a gun at the plaintiff’s upper body when he was in the process of confronting him and the third involved Mr Bingle firing two shots at the car in which the plaintiff was escaping. Of course, there must have been a significant cumulative effect on the plaintiff in consequence of each tort. But each tort caused different damage and the damage flowing from each should have been identified and quantified. Moreover, the elements of each tort have to be proved separately, even though in some instances the conduct of Mr Bingle in one or more incidents might bear on his conduct in the others. The impression given by her Honour’s reasons is that she used the cumulative effect of the conduct in each incident to prove that each tort had been committed. This may, in theory, be possible, but it does require the judge to set out details of her reasoning and the matters she has taken into account in regard to each tort so it can be seen that there has been no error. No such details are given in her Honour’s reasons.
This “cumulative approach” is of particular relevance to the second finding, namely, that Mr Bingle’s conduct was motivated by his “callous intention to cause injury”. While it was plainly open to her Honour to find that Mr Bingle intended to cause injury to the plaintiff in the first two episodes, that is not at all clear as regards the third.
But there is more to the finding of callous intention to cause injury than that. This finding must be seen together with the fourth finding that Mr Bingle behaved with reckless indifference to the safety of himself, the plaintiff, the accomplices and neighbouring residents. The primary judge appears to have used these two findings to justify her findings that none of Mr Bingle’s actions was in self-defence or was in defence of the Club’s property and that his conduct probably constituted “an offence/s as defined in s 54 of the Civil Liability Act.” Such an approach reveals a fundamental error. Intent to cause injury does not negate the defence of self-defence. A finding of callous intention to cause injury says nothing about whether, in causing that injury, the defendant acted in self-defence.
It is necessary to distinguish the intent or mens rea that forms part of an offence or tort such as assault or battery from the elements of the defence of self-defence that may be raised to such a charge or tort. The intent to cause the assault or battery is the mens rea or tortious intent that is part of the crime or intentional tort sought to be defended. In the case of battery, for example, it is the intent to cause physical contact. Obviously, this intent cannot negate the assertion of self-defence. This is because the defence of self-defence follows a completed crime or tort, meaning one where all the elements, including the necessary mental element, have been made out.

This is illustrated by R v Kurtic (1996) 85 A Crim R 57, which concerned the malicious infliction of grievous bodily harm under the then s 35 of the Crimes Act. Hunt CJ at CL (with whom Grove J and Barr AJ agreed) said (at 62):
“(The) issue of self-defence did not arise until the Crown had first established each of the basic ingredients of the crime with which the appellant had been charged, for self-defence must be considered upon the basis that such ingredients have been made out. In determining whether those basic ingredients have been made out, the tribunal of fact is entitled to take into account the evidence which relates to the issue of self-defence, but care must be taken that there is no conflict between those facts accepted for the purpose of determining the latter and those accepted for the purpose of determining the former.
The first of the issues which arose and which had to be determined in the present case was therefore whether the Crown had established that the appellant inflicted the injuries maliciously. S5 of the Crimes Act provides that any act which is done with an intent to injure without lawful excuse or done recklessly or wantonly shall be taken to have been done maliciously. Self- defence has been described as raising a plea by way of justification or excuse, but it seems to me that to introduce the issue of self-defence at the stage of considering whether the basic ingredients of the offence have been made out is productive of confusion and, to some extent, a danger of a circularity in reasoning.” (Footnotes omitted).
Thus, self-defence and the intent to injure (including a “malicious” intent as it was in R v Kurtic) are not mutually exclusive. As Hunt CJ at CL stated, a consideration of self-defence follows only after the elements of the offence have been satisfied, including the proof of an intention to injure.
There are further difficulties with the findings that none of Mr Bingle’s actions was in self-defence or was in defence of the Club’s property and that his conduct probably constituted “an offence/s as defined in s 54 of the Civil Liability Act.” These stem from her Honour’s omission to analyse the elements of the offence of assault and to consider the facts in relation to each of the three episodes so as to determine whether those elements were proved.

There is nothing in the primary judge’s reasons that indicates that she undertook the two-stage inquiry that, as is explained in R vKatarzynski [2002] NSWSC 613, is necessary in determining whether self-defence was established. Her Honour does not appear to have considered, in regard to any of the episodes, whether Mr Bingle believed that his conduct was necessary in order to defend himself. Nor does she appear to have considered whether there was a reasonable possibility that what Mr Bingle did in relation to each episode was a reasonable response to the circumstances as he perceived them to be. In my view, these matters alone require the judgment to be set aside. After all, the defendant’s answer to the plaintiff’s claim was largely based on self-defence.
Section 54: Can the defendant be vicariously liable for the criminal assault committed by Mr Bingle?
I have pointed out that, in response to the allegation in the amended statement of claim that Mr Bingle was a servant or agent of the defendant and the assertion that, “at all material times the defendant was (vicariously) liable for the actions of [Mr Bingle]”, the defendant admitted that “it was vicariously liable for same”.
In his closing address at trial, counsel for the defendant submitted that, despite this admission, were the primary judge to find that Mr Bingle’s actions were not “justifiable” and that “he was not performing acts that he was employed to do”, such conduct on his part “would take him outside the scope of his employment”. In my opinion, this submission, at that particular stage, did not detract from the defendant’s admission in the pleadings. The defendant must be taken to have admitted that it was vicariously responsible for the actions of Mr Bingle on 23 June 2003.
The question that then arises (which was addressed neither by counsel at the trial, nor her Honour, and which was for the first time raised on appeal by this Court), is whether the defendant, as a company, could be liable for the offence of assault. In other words, can a corporation commit an assault? If so, was the defendant company liable for the offence of assault on the facts of the case. Once the plaintiff sought to rely on s 54(2), these questions had to be resolved.

There are two classes of criminal offence that a company cannot commit. The first class arises by virtue of a company’s status as an unnatural or artificial person. For example, a company cannot commit suicide or bigamy. The second class arises by virtue of the company’s inability to be punished. Thus, a company cannot commit a crime where the only punishment is a term of imprisonment. These matters are discussed in the judgment of Stable J delivered on behalf of the English Court of Criminal Appeal in R v ICR Haulage Limited [1944] 1 KB 551 at 554:
“The offences for which a limited company cannot be indicted are, it was argued, exceptions to the general rule arising, from the limitations which must inevitably attach to an artificial entity, such as a company. Included in these exceptions are the cases in which, from its very nature, the offence cannot be committed by a corporation, as, for example, perjury, an offence which cannot be vicariously committed, or bigamy, an offence which a limited company, not being a natural person, cannot commit vicariously or otherwise. A further exception, but for a different reason, comprises offences of which murder is an example, where the only punishment the court can impose is corporal, the basis on which this exception rests being that the court will not stultify itself by embarking on a trial in which, if a verdict of [g]uilty is returned, no effective order by way of sentence can be made. In our judgment these contentions of the Crown are substantially sound … .”
The second class referred to by Stable J has all but been eradicated in Australia following the passage of legislation converting physical sentences and punishments into fines. In NSW, this was achieved by s 16 of the Crimes (Sentencing Procedure) Act 1999:
16Fines for bodies corporate for offences punishable by imprisonment only
If the penalty that may be imposed (otherwise than under this section) for an offence committed by a body corporate is a sentence of imprisonment only, a court may instead impose a fine not exceeding:
(a)2,000 penalty units, in the case of the Supreme Court, the Court of Criminal Appeal, the Land and Environment Court, the Industrial Relations Commission or the District Court, or
(b) 100 penalty units, in any other case.
Thus, to use the example of assault occasioning actual bodily harm, a company is capable of committing the crime despite punishment under s 59 (and s 61) of the Crimes Act being in the form of imprisonment alone (see, by analogy, P & O European Ferries (Dover) Ltd (1991) 93 Cr App R 72 where Turner J held that a corporation may be found guilty of manslaughter and Attorney-General’s Reference (No 2 of 1999) [2000] QB 796).
The fact that a company is capable of committing a crime and may be indicted for an offence does not, however, mean that the inherent characteristics of an artificial person are not relevant to whether a company may be found guilty of certain offences, particularly those offences of which mens rea is an element.
Generally speaking, once a company is capable of committing a particular offence, it may be found guilty of that offence on one of two bases, namely, on the grounds of vicarious responsibility or on the basis that the person who committed the actus reus and had the requisite mens rea was the directing mind and embodiment of the company in the Tesco Supermarkets Ltd v Nattrass [1972] AC 153 sense.
Whether the company may be found guilty on one or other of these bases depends on the legislation applicable, the nature of the offence in question, and the status and position within the company of the person who performs the acts said to constitute the offence.
Generally, a company will not be found guilty, on the basis of vicarious liability, for a criminal offence having mens rea as an element. This is traceable to at least the eighteenth century. In Huggins (1730) 2 Stra 883, Raymond CJ stated at 885:
“It is a point not to be disputed but that in a criminal case the principal is not answerable for the act of his deputy, as he is in civil cases; they must each answer for their own acts, and stand or fall by their own behaviour.”
As Lord Morris and Lord Diplock explained in Tesco Supermarkets Ltd v Nattrass, the rejection of vicarious liability in the criminal context is based upon a refusal to attach criminal liability to a person absent a guilty mind. Lord Morris said, (at 179):
“In general, criminal liability only results from personal fault. We do not punish people in criminal courts for the misdeeds of others. The principle of respondeat superior is applicable in our civil courts but not generally in our criminal courts."
Lord Diplock said, (at 199):

“To constitute a criminal offence, a physical act done by any person must generally be done by him in some reprehensible state of mind. Save in cases of strict liability where a criminal statute, exceptionally, makes the doing of an act a crime irrespective of the state of mind in which it is done, criminal law regards a person as responsible for his own crimes only. It does not recognise the liability of a principal for the criminal acts of his agent: because it does not ascribed to him his agent's state of mind. Qui peccat per alium peccat per se is not a maxim of criminal law."

See, generally, Ford’s Principles of Company Law, 13th ed (2007) Butterworths at para 16.120 and R v Murray Wright Ltd [1970] NZLR 476 (New Zealand Court of Appeal).

I reiterate that, absent a statutory provision to the contrary, vicarious liability has been rejected as a means of establishing mens rea in crimes requiring proof of that element (as otherwise criminal guilt could be found without the offender possessing the necessary intent).
The situation is different, however, where mens rea does not form part of the offence. Parliament may create offences of strict or absolute liability, and it has long been accepted that, in such a case, the application of vicarious liability principles is not inhibited.
The following statement of Atkin J in Mousell Brothers Ltd v London and North-Western Railway Co (1917) 2 KB 836 at 845 is usually referred to as the leading authority in this area:
"I think that the authorities cited by my Lord make it plain that while prima facie a principal is not to be made criminally responsible for the acts of his servants, yet the legislature may prohibit an act or enforce a duty in such words as to make the prohibition or the duty absolute; in which case the principal is liable if the act is in fact done by his servants. To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed."
Mousell Brothers Ltd v London and North-Western Railway Co was applied by the High Court of Australia in The King and The Minister for Customs v Australasian Films and Another (1921) 29 CLR 195. The Court said at 215:
“We proceed to consider, by applying the tests suggested by Atkin J [in Mousell Brothers Ltd v London and North-Western Railway Co], whether sec 241 of the Customs Act has the effect of making the principal, if a company, liable for the act of its servant or agent when the person doing the act or some servant or agent of the company from whom he takes his instructions has the intention of defrauding the revenue.”
And at 217:

“Adopting the language of Atkin J quoted above, we think that the principal is liable in any case in which his servant or agent in the course of his employment ‘commits the default provided for in the statute in the state of mind provided for by the statute. Once it is decided that this is one of those cases where a principal may be held liable criminally for the act of his servant, there is no difficulty in holding that a corporation may be the principal. No mens rea being necessary to make the principal liable, a corporation is in exactly the same position as a principal who is not a corporation.’ If the principal is liable for the fraud of the agent actually committing the offence, he is no less liable for the fraud of some superior servant or agent by whose direction the offence is committed, but we see no reason for extending the responsibility of the principal to a case in which it is sought to make the principal responsible for the state of mind or the state of knowledge of some other servant or agent not concerned in the doing of the act.”

See also Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 where Gleeson CJ (with whom Mahoney JA and Campbell J agreed) said, at 718-719:
“As a rule the common law refused to impose criminal responsibility on a person, as a principal, for the misdeeds of others. The development and extension of principles imposing vicarious liability in the nineteenth and twentieth centuries reflect, to some extent, difficulties encountered in law enforcement. Principles were abstracted from developments in the law of tort, and this was done most readily when the offences could be characterised as regulatory in substance although criminal in form. Such offences were sometimes characterised as ‘public welfare offences’. Laws relating to fair-trading, consumer protection, and safeguarding the environment provide examples.
Questions of statutory construction commonly require consideration in this context. The ultimate issue in the present case is whether or not the legislature has, expressly or by necessary implication, created a criminal offence for which one can be found vicariously responsible.
Whatever may be the outer limits of the principles attracting the imposition of vicarious liability it is necessary that the relevant statutory offence be of such a nature that it is capable of commission vicariously. The operative verb “to pollute”, as defined in s 5, is sufficiently broad to attract vicarious criminal liability, especially having regard to the analogous circumstances where similarly broad language has been used to prohibit other forms of public nuisance or to promote analogous public welfare legislation …”. (Footnotes omitted)
See also Director-General of The Department Of Land And Water Conservation v Greentree & Anor [2003] NSWCCA 31; (2003) 140 A Crim R 25 at [81]-[83] per Sheller JA, Levine J and Smart AJ.
Assault is not an offence of strict or absolute liability. Furthermore, there is nothing in ss 59 or 61 of the Crimes Act that indicates that the requisite mens rea for the establishment of those offences can be derived vicariously from a servant or agent of a corporation. It follows that the defendant in this case could not be vicariously criminally liable for an assault committed by Mr Bingle in the course of his employment.
The issue whether the defendant was criminally liable for assault because Mr Bingle was its directing mind and physical embodiment was not raised in the pleadings, nor was it dealt with in her Honour’s reasons. It was, however, the subject of the parties’ written submissions and in my view it must be considered in this appeal. It is an obvious issue and it is of fundamental importance.
It was common ground that Mr Bingle was the managing director and sole employee of the defendant. He referred in evidence to the defendant as “my company”. On the recognised tests, Mr Bingle was the directing mind and embodiment of the defendant. In view of this conclusion it is not necessary to deal with the submission in the plaintiff’s supplementary written submissions, filed after oral argument on appeal had concluded, that the trial was conducted on the basis that a company could be liable for the offence of assault.

Once it is accepted that Mr Bingle was the directing mind and embodiment of the defendant, his conduct and his state of mind were capable of being attributed to the defendant, provided of course that his relevant acts were performed on the defendant’s behalf. I have mentioned that the defendant admitted in the pleadings that it was vicariously liable for the acts of Mr Bringle on the morning in question. I think inherent in that admission are the further admissions that Mr Bingle’s acts were performed in the interests of the defendant, were its acts, and Mr Bingle performed those acts when acting as the directing mind and embodiment of the defendant.
Accordingly I would accept that the primary judge correctly attributed Mr Bingle’s conduct and state of mind during each of the three episodes on 23 June 2003 to the defendant. That being so, it is unnecessary for me to deal with s 10(1) of the Criminal Procedure Act (NSW) to which Allsop P refers.
During argument on appeal, there was some discussion as to the meaning of s 54(5). For the sake of convenience I repeat that this section provides:
“This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned.”
Once it is accepted that her Honour correctly attributed Mr Bingle’s conduct and state of mind on 23 June 2003 to the defendant, it is unnecessary to consider the meaning and effect of s 54(5). The situation is that the defendant was capable of being found guilty of the offence of assault by reason of the fact that Mr Bingle’s acts were its acts.
Section 52
Section 52 of the Civil Liability Act relevantly provides:
“52         No civil liability for acts in self-defence
(1)A person does not incur a liability to which this Part applies arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding:
(a)          was unlawful, or
(b)would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct.
(2)A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a)          to defend himself or herself or another person, or
(b)to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c)to protect property from unlawful taking, destruction, damage or interference, or
(d)to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives them.
(3)          … “.
In my view, the onus is on the defendant to prove absence of liability on the grounds of self-defence (on his or her part) as set out in s 52. I come to this conclusion for similar reasons as those I gave when expressing the view, in relation to s 54, that the onus lies on a defendant to prove that, because his or her acts constitute self-defence, the plaintiff cannot rely on s 54(2). I appreciate that s 52(1) provides for the circumstances under which a “person does not incur a liability”, whereas s 54(1) provides for circumstances under which a “court is not to award damages in respect of liability”. In my view, however, this difference does not outweigh the other considerations to which I referred when dealing with the onus of proof applicable in regard to s 54.
The difficulties that arise in regard to the judge’s findings in connection with the elements of self-defence in relation to the defendant’s reliance on s 54 apply equally in regard to the defendant’s case based on s 52.
Section 53
Section 53 relevantly provides:
“(1)If section 52 would operate to prevent a person incurring a liability to which this Part applies in respect of any conduct but for the fact that the conduct was not a reasonable response in the circumstances as he or she perceived them, a court is nevertheless not to award damages against the person in respect of the conduct unless the court is satisfied that:
(a) the circumstances of the case are exceptional, and
(b)in the circumstances of the case, a failure to award damages would be harsh and unjust.
(2)If the court determines to award damages on the basis of subsection (1), the following limitations apply to that award:
(a)Part 2 (with the exception of Division 3 of that Part) applies with respect to the award of damages despite section 3B (1) (a), and
(b)no damages may be awarded for non-economic loss.
The defendant did not plead s 53, but her Honour obviously had it in mind when she concluded (at [56]), “the evidence persuades me that the circumstances of Mr Brilley’s case are exceptional and that this Court’s failing to award him damages would be harsh and unjust”.
Her Honour made no findings as to the particular circumstances of the plaintiff’s case which led her to this conclusion, she did not state the grounds on which she considered the circumstances were exceptional and she neither identified the evidence nor explained the grounds which led her to the conclusion that a failure to award the plaintiff damages would be harsh and unjust.

Conclusion

To summarise:
(a)There are serious problems with certain of the primary judge’s factual findings. I have set out the factual findings concerned and the difficulties with them in the section headed “Difficulties with the primary judge’s factual findings”.
(b)The judge did not adequately engage with the defendant’s reliance on s54 and the contention that Mr Bingle acted in self-defence. I have set out the problems with her Honour’s findings in this respect in the section headed “The primary judge’s treatment of s 54”. I have explained that similar problems arise in connection with her Honour’s findings in regard to the defendant’s defence based on s 52.
(c)I have referred to the absence of relevant findings concerning her Honour’s treatment of the issues raised by s 53.

In my opinion, the problems I have identified with her Honour’s factual findings are so material that they cannot stand.
Further, her Honour’s omission to engage with the case presented by the defendant has worked a miscarriage of justice, has produced a mistrial and is reviewable on appeal (to paraphrase Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728; see also Whalan v Kogarah Municipal Council (2007) NSWCA 5 at [40]).
Senior Counsel for both parties requested this Court (in the event of the appeal succeeding) to attempt to arrive at a final result itself. After giving these submissions serious consideration, I regret that I do not think that justice could be done without full and clear factual findings by a trial court, including, amongst other things, findings relating to whether Mr Bingle acted in self-defence in regard to each of the three episodes in question (bearing in mind all the elements involved).
I have mentioned that there was an issue between the parties as to whether the defendant had admitted in its defence that it was vicariously liable for the acts of Mr Bingle. I have held in favour of the plaintiff on this issue by reference to the words used in the pleadings. It may well be, however, as I think Mr Deakin implied, that the defendant did not subjectively intend to make that admission on the basis of the plaintiff’s version. It is possible that the defendant might wish to apply to withdraw that admission in relation at least to the third episode and, perhaps, in regard to the second. This would be a matter for the judge hearing such an application, were one to be made.

I propose that the following orders be made:

(a)          The appeal is upheld;
(b)          The judgment and orders of O’Toole DCJ are set aside;
(c)          The matter is remitted to the District Court for rehearing;

(d) The plaintiff to pay the defendant’s costs of the appeal;

(e)The plaintiff to have a certificate under the Suitors Fund Act if otherwise entitled;

(f)The costs of the trial to be determined by the judge hearing the retrial.

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LAST UPDATED:
10 September 2008