R v Bridgland - [2014] SASCFC 80

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BRIDGLAND
[2014] SASCFC 80
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Bampton)
22 July 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DEFENCE OF PERSONS OR PROPERTY - GENERALLY
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DEFENCE OF PERSONS OR PROPERTY - REASONABLE BELIEF IN NECESSITY OF RESPONSE
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DEFENCE OF PERSONS OR PROPERTY - ACCUSED ORIGINAL AGGRESSOR
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DEFENCE OF PERSONS OR PROPERTY - DEFENCE OF ANOTHER
Appeal against conviction for manslaughter. The defendant’s associates were engaged in a fight in a hotel car park with the deceased. The defendant approached the scene and was punched at by the deceased. The defendant then punched the deceased in the head, killing him.
Whether the Judge erred in finding that the defendant was not in danger before entering the fight. Whether the Judge erred in finding that self defence was negated by the defendant leaving his position of safety, thereby becoming a willing combatant. Whether the Judge adequately addressed the deceased’s aggression towards the defendant. Whether the Judge erred in finding that the defendant was not acting in defence of another.
Held per the Court granting permission but dismissing the appeal:
1. The Judge’s factual findings were fully supported by the evidence.
2. The Judge did not err in his consideration of the issue of self defence.
3. The Judge did not err in his consideration of the issue of defence of another.
4. There was no risk of there having been a miscarriage of justice.
Criminal Law Consolidation Act 1935 (SA) s 13, s 15 and s 15A, referred to.
R v Fricker (1986) 42 SASR 436; R v Nguyen (1995) 36 NSWLR 347; Morgan v Colman (1981) 27 SASR 334; Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645; Palmer v R [1971] AC 814, considered.

R v BRIDGLAND
[2014] SASCFC 80
Court of Criminal Appeal: Gray, Sulan and Bampton JJ
THE COURT

This is an appeal against conviction.
Background
The defendant and appellant, Jason Graham Bridgland, was jointly charged with Alex George Winter and a youth, ATS, with the offence of manslaughter relating to the death of Henk Van Oosterom in the car park of the Old Bushman Hotel in Gawler in the early hours of 1 September 2012.[1] The deceased was a stranger to the defendant and his co-accused. The prosecution case was that the defendant was the principal offender. It was said that he punched the deceased to the left side of the head, causing his death. The co-accused were allegedly parties to a joint criminal enterprise with the defendant to assault the deceased in such a way as to expose the deceased to an appreciable risk of serious injury.
[1] Criminal Law Consolidation Act 1935 (SA) section 13.
All elected for trial by judge alone. The defendant was convicted of the offence of manslaughter. Verdicts of not guilty were recorded in respect of the co-accused.
At trial, the prosecution was put to proof of each of the elements of the offence of manslaughter. The Judge found beyond reasonable doubt that the blow delivered by the defendant to the head of the deceased was the substantial cause of his death.
On the topic of the assessment of witnesses, the Judge recorded the following:
I accept the expertise of Dr Charlwood and her evidence in full. I accept the police officers Brevet Sergeant Peter McKenzie, Senior Constable Christopher Twiggs and Constable John Oberholzer as honest and reliable witnesses and I accept their evidence. I also accept the evidence of Detective Brevet Sergeant Robert Brooker given in the trial proper. I further accept the evidence of the persons employed at, or by, the Hotel.
As for the various patrons of the Hotel, I accept that all were endeavouring to give truthful evidence. However, these witnesses had been drinking varying amounts of alcohol and I bear in mind that there is a need for me to assess the reliability of particular witnesses on particular topics against that background.
I say no more on the topic because there was very little cross-examination indicating any serious quarrel being taken with the oral evidence of any witness. There was no clash between witnesses for the defence and those called by the prosecution because none of the accused gave or called any oral evidence.
Clearly, the real area of debate was as to what inferences could be drawn from the evidence and, of course, as to the viewing and interpretation of the various recorded visual material.
The evidence primarily relevant to the issues before this Court were the observations of the patrons of the hotel and the viewing and interpretation of what the Judge described as “the various recorded visual material”, which we will refer to as “video footage” in these reasons. The defendant did not give evidence or call any other evidence in support of his case.
The Judge summarised the video footage, noting the locations of the various cameras and that each camera was imbedded with a uniform continuous time clock. The Judge noted that this embedded time was not synchronised with true South Australian time. He described the functioning of digitally recorded material. He concluded that he could not be confident that by examining the images frame by frame a precise account of the movement of persons could be obtained. The Judge, however, found that, in the circumstances, this was not a material consideration.
The Judge noted that the prosecution had to prove beyond reasonable doubt that the punch by the defendant to the left side of the deceased’s head was a conscious and voluntary act being the result of the exercise of the defendant’s will and not the result of an accident. Further, the prosecution had to prove that the act caused the death of the deceased and constituted an unlawful physical assault carried out in circumstances where a reasonable person would have realised that he was exposing the deceased to an appreciable risk of serious injury and was inflicted without any lawful justification or excuse, such as lawful self defence or defence of another person.
The incident during which the blow was struck by the defendant to the deceased took place in the Eastern car park adjacent to the hotel. Jacob Commins gave evidence that he attended the hotel on this occasion and said that by closing time, 3.00am, although “pretty drunk”, he could still stand, walk and converse. As he left the hotel, he walked to a wall which divided the Eastern car park from the footpath of a nearby street. As he stopped to say goodbye, he estimated that there were 40 to 50 people in the vicinity. He struck up a conversation with the deceased, who he recognised as being Dutch, and they conversed in what he described as “drunk talk”.
Mr Commins was alerted at this time to the fact that a friend with whom he had been at the hotel had been hit. He went to the Eastern car park and discovered his friend, Bradley Chenoweth, lying on the ground, “out cold”. Mr Commins then yelled out “who the fuck did this?” This apparently led to a man, alleged by the prosecution to be ATS, coming at him throwing punches. Mr Commins did not respond to this attack as he was concerned that another man standing behind his assailant might also enter the fight. Mr Commins was struck several times and fell to the ground. He put his arms up in front of his face and felt a kick to his arm.
Two associates of the co-accused Mr Winter were called by the prosecution to give evidence. Justin Paul Webster-Bonser gave evidence that he had been drinking at the hotel that night. He described himself as being drunk. When he left the hotel, he waited outside for a pre-arranged lift to arrive. He spoke to the deceased and another Dutchman at this time. While speaking to the deceased, he heard a thump and saw someone fall to the ground. He observed people who he did not know grabbing each other and a scuffle taking place. He saw Mr Winter approach two people who were fighting and saw the deceased push Mr Winter back through the car park, towards a vehicle, and then saw Mr Winter fall to the ground. He described the deceased being perhaps a metre or two away from Mr Winter when Mr Winter fell to the ground. Mr Webster-Bonser stepped in to help Mr Winter, but before he had moved too far, the deceased had fallen “pretty much right in front of him”. He did not see what caused the deceased to fall to the ground.
Thomas David Biggs was an associate of Mr Winter and Mr Webster-Bonser. On the night of the incident, he had originally been drinking at the Exchange Hotel in Gawler with Mr Winter and Mr Webster-Bonser. They moved to the Old Bushman Hotel before midnight. The three men left the Old Bushman Hotel at closing time, and, while standing on the footpath outside the hotel, Mr Biggs spoke to the deceased and another man who he knew to be Dutch. He became aware that a fight was taking place but he did not know the people involved. The deceased was not involved initially, but moved into the fight to try to “split it up”. He observed Mr Winter walk towards the fight and saw the deceased walk towards Mr Winter, pushing him two or three times towards a vehicle in the car park. Mr Winter was leaning against the car and, as Mr Winter tried to pull himself up, the deceased was hit from the side by the defendant.
As earlier noted, the Judge considered that these witnesses were endeavouring to give truthful evidence but, as a result of their drinking alcohol, there was a need for the Judge to assess their reliability having regard to this background.
The Judge provided in his reasons the following summary. As this aspect of the matter was subjected to close scrutiny on the application before this Court, it is convenient to set out the Judge’s findings:
At about 3:00:27am the deceased is seen walking towards “X” and Commins. He then moves “X” away from Commins. A little later, at about 3:00:31am, the deceased puts his hand out; he probably did so to prevent “X” from moving back toward Commins.
At about this same time, Winter is seen a little behind the deceased. He puts his left arm outstretched in front of the deceased and then steps between “X” and the deceased. It is impossible to know what Winter had seen up to that point and how he had interpreted it, but it seems to me that he may not have fully comprehended exactly what “X” had done and may well have mistakenly thought that the deceased was about to over react towards “X” in some way.
In any event, I consider that, had it not been for the continued outrageous conduct of “X”, nothing further would have occurred and no further injuries would have been suffered. However, and unfortunately for all concerned, “X” with surprising speed and dexterity, suddenly took advantage of the very temporary impasse between Winter and the deceased. In the twinkling of an eye, “X” circled around Winter and again forcefully kicked Commins on the ground without the slightest provocation or justification.
It appears to me that this manoeuvre completely surprised Winter, as indeed it did myself when seeing exhibit P6 for the first time. The deceased and Winter are quite close together at this time and as the deceased tries to again forestall “X’s” activities, they appear to make very minor contact. The prosecution assert that this is deliberate contact by Winter. I simply cannot agree. Winter may have been a bit clumsy, perhaps slow to get out of the way and flummoxed by some intoxication and the bizarre behaviour of “X”. But I simply do not accept that Winter was doing anything other than trying to prevent trouble; Winter was not deliberating assaulting the deceased.
Quite understandably, the deceased was probably frustrated and annoyed that, having originally removed “X” from Commins, “X” by his sudden manoeuvre around Winter had succeeded in attacking Commins yet again. The deceased probably blamed Winter for getting in the way and in that sense enabling “X” to take advantage of the situation. For whatever reason, the deceased tragically appears to have become somewhat testy and commenced (at about 3:00:37am) to push Winter backwards towards the blue utility and continued to do so.
It must be said that during this time the deceased did make several hand gestures as if imploring Winter to fight. At 3:00:39am, the deceased swings his right arm at Winter but does not connect and at 3:00:44am the deceased performs a kicking motion which does not make contact with Winter. Again, Winter in no way assaulted the deceased.
However, during this period, “X” quite independently rushed at the deceased from behind and hit him once in the back (at 3:00:45am) but it is clear that this caused no injury to the deceased. The difference in height and weight as between the deceased and “X” is very marked.
While this was occurring (probably unknown to Winter since “X” would have been obscured by the deceased’s large torso), Winter continued to walk backwards, and eventually came into contact with the blue utility and fell down. As Winter tries to get to his feet there may have been some contact between himself and the deceased but I do not accept that there was any assault by Winter upon the deceased.
However, as Winter is trying to get to his feet, “X” comes in again and hits the deceased on his head (at 3:00:47am). Again, it is clear that this caused no injury to the deceased. This action by “X” may well have not been perceived by Winter.
However, as I have found above, at about 3:00:52am, Bridgland approached the deceased, took hold of him and punched him to the side of the head. The deceased fell to the ground and did not get up. I find that Winter, while physically close at the time, had nothing to do with the delivery of that blow and played no part in the death of the deceased.
As earlier noted, the defendant did not give evidence or call any other evidence in the defence case. The Judge addressed the absence of any evidence of the defendant concerning the holding of any particular genuine belief, inter alia, as follows:
There is no statement by [the defendant] to police in evidence and he did not give or call any evidence. He thus makes no express claim that he acted in self defence and supplies no version as to his holding a contemporaneous genuine belief concerning the matters referred to in s 15(1). Indeed, through his counsel, he actively disputed that he was at the scene at all.
...
In the absence of any assertion by the defendant as to what his genuine beliefs were, the Court will still address the possibility of the holding of a particular genuine belief that is suggested by the evidence in the case. But the Court is not required to engage in pure speculation as to what the defendants might have genuinely believed if, as here, the defendant, with legal advice, chooses not to inform either the police or the Court as to the holding of any such particular belief.
This Court has reviewed the video footage on a number of occasions. We do not consider the footage to be of high quality. We found it difficult to discern precisely what was occurring at the time of the events immediately prior to and at the time of the striking of the deceased by the defendant. The summary provided by the Judge, as set out above, appears to be correct and, in any event, records findings open to the Judge on the evidence led in the trial.
On the question of the actus reus, the Judge concluded:
... I make the following findings beyond reasonable doubt on the basis of the cumulative effect of all of the direct and circumstantial evidence before me:
[The defendant] was inside the premises of the Old Bushman Hotel at various times on the subject occasion prior to the eastern car park incident.
[The defendant] was later present in the eastern car park of the Hotel after it closed at around 2:30am on 1 September 2012. Shortly thereafter, at about 3:00:52am, [the defendant] there approached the deceased, took hold of him and punched him to the left side of the head. The deceased then fell to the ground and never got up.
...
The Judge found beyond reasonable doubt that the defendant’s act of punching was a voluntary and deliberate act and not accidental, that the act was a dangerous act and was done with an intention to strike the deceased in the head area in circumstances where a reasonable person would have realised that he was thereby exposing the deceased to an appreciable risk of serious injury.
The Judge in his reasons then turned to address self defence and the defence of another. In respect of self defence, the Judge first concluded that the defence of self defence, as distinct from defence of another, was negated beyond reasonable doubt on the evidence. The Judge concluded:
I find that there is no objective evidence from which it can be inferred that [the defendant] may have had a genuine belief that it was necessary and reasonable to punch the deceased in the side of the head in the way that he did for the purpose of defending himself. The situation was one of his own making by advancing to that position. Further, while the deceased had thrown a punch at him, the recorded visual material shows clearly that [the defendant] was in full control of his faculties and had every opportunity to retreat. Instead, he positively elected to fight and to deliver a blow which proved to be fatal.
I find that the prosecution has proven beyond reasonable doubt that [the defendant] did not have a genuine belief that it was necessary and reasonable to punch the deceased in the side of the head in the way that he did for the purpose of defending himself...
The Judge, in the alternative, addressed the question of reasonable proportionality as follows:
I further find that the prosecution has proven beyond reasonable doubt that the act of punching the deceased in the side of the head in the way that he did was not reasonably proportionate to any threat to himself that [the defendant] may genuinely have believed to exist. Accordingly, I find that the prosecution has disproved the defence of self defence beyond reasonable doubt.
The Judge then addressed the defence of another and in that respect concluded:
While I am prepared to accept that [the defendant] may have genuinely believed that it was necessary to take some step to intervene on behalf of Winter, [the defendant] could have, if he had wished, simply ushered Winter away from the deceased. I find that the prosecution has proven beyond reasonable doubt that [the defendant] did not have a genuine belief that it was necessary and reasonable to punch the deceased in the side of the head in the way that he did for the purpose of defending Winter.
I further find that the prosecution has proven beyond reasonable doubt that the act of punching the deceased in the side of the head in the way that [the defendant] did was not reasonably proportionate to any threat that [the defendant] may genuinely have believed to exist in relation to Winter.
I find that the prosecution has disproved the defence of defence of another beyond reasonable doubt.
Having regard to all of the above findings, the Judge reached the ultimate conclusion that the defendant was guilty of the offence of manslaughter.

On the hearing of the appeal, the defendant complained in respect of the Judge’s findings concerning both self defence and defence of another.
Sections 15 and 15B of the Criminal Law Consolidation Act 1935 (SA) address self defence and defence of another and provide:
15—Self defence
(1)     It is a defence to a charge of an offence if—
(a)     the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b)     the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
…
(3)For the purposes of this section, a person acts for a defensive purpose if the person acts—
(a)     in self defence or in defence of another; or
(b)     to prevent or terminate the unlawful imprisonment of himself, herself or another.
…
(5)If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
…
15B—Reasonable proportionality
A requirement under this Division that the defendant’s conduct be (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist does not imply that the force used by the defendant cannot exceed the force used against him or her.
The Judge considered that the defendant was in no danger before he entered into the fight. The Judge referred in this respect to the following observations of King CJ in Fricker:[2]
… It was established by The Queen v Howe that to retreat before employing force is not an independent or imperative condition of the success of a plea of self defence but that opportunity to retreat is merely an element for the jury to consider on the question of the reasonableness of the conduct of the accused. It is material to the question of whether the force used was reasonably proportionate to the danger which the appellant believed himself to be facing. If an appellant knows that he can avoid danger by departing the scene, that knowledge is a material factor in deciding whether the use of force was justified.
[Footnotes omitted.]
[2] R vFricker (1986) 42 SASR 436, 441.
The Judge then reasoned:
Thus, the question of an ability to depart the scene is relevant to both limbs of s 15(1). First, whether Bridgland genuinely believed the punch was necessary and reasonable for the purpose of defending himself. Second, whether Bridgland’s conduct was, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat that he genuinely believed to exist.
Of course, in the present case it was not even a matter of Bridgland retreating. It was a situation of Bridgland positively leaving a position of safety and advancing to a different position where trouble might likely arise...
The Judge drew on the following observations of Priestley JA stated in Nguyen: [3]
[S]elf defence has as its starting point a person who, not wanting to fight, is attacked or threatened with attack in a way leading the person to believe self defence is necessary for the person’s own protection from harm. Such situations do not include those where what is going on is a fight which the fighters have willingly joined in, whether to carry on or settle a quarrel, or for some other reason. Once such a fight is under way, the person who has, ex hypothesi, got into it for reasons other than self-defence, may often, because of the nature of fighting, be suddenly faced with injury or death, and to prevent that, self defence in one sense will be necessary, which may lead to the injury or death of the opponent. That sort of self-defence, if it ends in the killing of the opponent, is not the sort of self-defence that the Crown must negative in showing (when the issue arises) that the killing had been unlawful. … (Emphasis added)
[3] R v Nguyen (1995) 36 NSWLR 347, 407.
The Judge also drew on the following remarks of Wells J stated in Morgan v Colman:[4]
Defence means defence; a person who claims to have been acting in justifiable self defence must have acted, and believed himself to have been acting, in defence. To engage willingly in combat is not acting in self defence.
[4] Morgan v Colman (1981) 27 SASR 334, 336.
On the appeal, the defendant contended that the Judge erred in holding that self defence was negated beyond reasonable doubt on account of the defendant having left a position of safety to advance to a position where trouble might arise. It was complained that the Judge elevated the proposition of the cases of Nguyen[5] and Morgan v Colman[6] to what was described as something tantamount to a rule of absolute application, as opposed to merely a relevant circumstance. It was further complained that the Judge was wrong to treat the defendant as a willing combatant or otherwise as an aggressor in the sense contemplated by the authorities. Attention was drawn to the observations of Wilson, Dawson and Toohey JJ in Zecevic:[7]
... Where an accused person raising a plea of self-defence was the original aggressor and induced or provoked the assault against which he claims the right to defend himself, it will be for the jury to consider whether the original aggression had ceased so as to have enabled the accused to form a belief, upon reasonable grounds, that his actions were necessary in self-defence. For this purpose, it will be relevant to consider the extent to which the accused declined further conflict and quit the use of force or retreated from it, these being matters which may bear upon the nature of the occasion and the use which the accused made of it. Indeed, even in circumstances in which the accused was not the original aggressor, retreat in the face of a threat of violence before resort to force may be relevant to the belief of the accused or the reasonableness of the grounds upon which the accused based his belief. There is, however, no longer any rule that the accused must have retreated as far as possible before attempting to defend himself. It is a circumstance to be considered with all the others in determining whether the accused believed upon reasonable grounds that what he did was necessary in self-defence: Howe, per Dixon C.J.; Viro, per Gibbs J.
[Footnotes removed.]
[5]    R v Nguyen (1995) 36 NSWLR 397.
[6]    Morgan v Colman (1981) 27 SASR 334.
[7]    Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645, 663.
Counsel for the defendant submitted that, in accordance with the above extract from Zecevic, it was necessary for the Judge to determine whether circumstances had changed in the split second before the defendant struck the blow to the deceased. It was argued that the defendant was reacting to a blow being struck in his direction by the deceased, that the reaction was instinctive and led to the throwing of the fatal punch in return. In our view, on the facts as found by the Judge and having viewed the video we consider that the submission is somewhat artificial in the circumstances of this case. This was a case of the defendant voluntarily entering into a fight and becoming a participant in that fight.
On the appeal, the defendant contended that the Judge overlooked the significance of images on the video footage showing the deceased punching out at the defendant immediately prior to the defendant punching the deceased in an act of self defence. It was suggested that the Judge had inadequately addressed the aggression of the deceased. It was further contended that the Judge erred in finding that the situation was one of the defendant’s own making by advancing toward the deceased.
In the course of written submissions, the defendant summarised his position on this point as follows:
Taking into account all of the above – and particularly the considerations that the applicant had observed the deceased punch and kick at Winter on several occasions; that the deceased was a large man apparently skilled in fighting; that the deceased had punched out at him resulting in his head reeling back; that the deceased appeared to then be advancing on the applicant; and that the deceased was put in a position where he had but a split second to make an instinctive judgment as to his reaction to the situation he faced – the applicant contends that the trial judge erred in excluding as a reasonable possibility the existence of a genuine belief on the part of the applicant that his punch was necessary and reasonable to defend himself.
The Judge in addressing the defence of self defence in the passages extracted earlier commenced by noting that the defendant was quite some distance away from the deceased when Mr Winter went to the ground. At that point, as the Judge observed, the defendant was in no danger and could not possibly have thought that he was. This, in a very real sense, was not a case of retreat, it was a case of the defendant positively leaving a position of safety and advancing to a position where trouble might likely arise. The video footage gave the appearance of the defendant joining in a fight that was underway. The earlier extracted observations of Priestly JA in Nguyen are apposite.[8] To repeat the critical passage:[9]
Once such a fight is under way, the person who has, ex hypothesi, got into it for reasons other than self-defence, may often, because of the nature of fighting, be suddenly faced with injury or death, and to prevent that, self defence in one sense will be necessary, which may lead to the injury or death of the opponent. That sort of self-defence, if it ends in the killing of the opponent, is not the sort of self-defence that the Crown must negative in showing (when the issue arises) that the killing had been unlawful.
[8] R v Nguyen (1995) 36 NSWLR 397.
[9] R v Nguyen (1995) 36 NSWLR 397, 407.
In our view, the video footage and the evidence in the trial left it open to the Judge to conclude that the defendant had willingly engaged in conduct and had not acted in self defence. We would go further and conclude that not only was it open, but it was a finding fully supported by the evidence.
This was not a case of a fight that was ongoing for some time. In this case, the defendant entered into the fray to assist the two others fighting with the deceased. His final approach toward the deceased was at some speed, with an outstretched hand. This was not a case of original aggression having ceased so that the defendant could form the belief on reasonable grounds that his actions were in self defence. We do not consider this scenario to be established as a reasonable possibility to support a reasonable hypothesis consistent with innocence.
The Judge was entitled to take into consideration the possibility of retreat when determining whether the prosecution had proved beyond reasonable doubt that the defendant did not have the requisite belief of the need to defend himself at the time he punched the deceased. In the earlier extracted passage, the Judge recognised that the ability of the defendant to depart from the scene was merely an element to be considered in relation to both limbs of section 15(1) of the Criminal Law Consolidation Act. In our view, the Judge did not elevate this factual consideration to any form of absolute rule. We consider the Judge was entitled to find that the defendant’s move from his original position of safety to one where he took hold of the deceased and then punched him in the head was sufficient evidence to find that the defendant willingly engaged in combat and was not acting in defence of himself.
Earlier, we have extracted from the trial Judge’s reasons his finding that the act of the defendant punching the deceased in the side of the head in the way that he did was not proportionate to the threat against himself that the defendant may have genuinely believed to exist.
On the hearing of the appeal, the defendant submitted that the Judge had provided no basis for this conclusion. Attention was drawn to the observations of Mason CJ in Zecevic,[10] quoting from Palmer:[11]
If there has been an attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.
[10] Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645, 650.
[11] Palmer v R [1971] AC 814, 832.
It was submitted that, as this was an alternative consideration by the Judge, he had to proceed to discuss proportionality on the assumption that there was a relevant threat within the meaning of section 15(1)(c) of the Criminal Law Consolidation Act. Having found that the prosecution had proved beyond reasonable doubt that the defendant did not hold the requisite genuine belief, namely that his conduct in punching the deceased in the head was necessary and reasonable, it was submitted by the Director that this further finding did not follow as a matter of logic.
This alternative finding by the Judge only arises for consideration if his earlier conclusions are flawed. As noted above, we reject the submissions advanced in that respect by the defendant. The conclusion of the Judge concerning proportionality necessarily proceeded on the hypothesis that the defendant did have the relevant genuine belief. The difficulty confronting the consideration of this issue is that it is almost wholly dependent on speculation. Before any realistic consideration can be undertaken concerning proportionality, findings as to the genuine belief and the nature of that belief need to be made. In the event of such findings being made, issues about alternative courses of action available to the defendant need to be addressed before reaching a conclusion about proportionality.
Defence of Another
Earlier, we have extracted from the reasons of the trial Judge his treatment of the defence of another. The Judge was prepared to accept that the defendant may have genuinely believed that it was necessary to take some step to intervene on behalf of Winter. The Judge concluded that the defendant could have simply ushered Winter away from the deceased. The defendant submitted that this was unrealistic in the circumstances of a rapidly unfolding fight when several persons were in close proximity. Again, it was submitted that the video footage demonstrated that the deceased was being overly aggressive and that, in the circumstances, the defendant’s approach with his arm outstretched indicated an intention to break up the fight, rather than join in.
The Judge, when dealing with the defence of another person, reasoned as follows:
There is some evidential material to be considered in relation to a defence of “defence of another”, namely the behaviour of the deceased towards Winter which has been detailed above. However, on close examination it is very clear that this defence is also negated.
One starts with the way in which Bridgland reacted to the process of the deceased pushing Winter backwards to the blue utility. Interestingly, Bridgland’s own counsel described the matter in submissions in this way:
It is important to note at that point when they get to the car or when Winter goes down that Bridgland initially is not on screen. Bridgland does not, when he is seen, run in. Bridgland, to put it quite frankly ambles in with his hands in his pockets, a bit like Mr Webster-Bonser who is there, maybe going for a look …
One’s initial reaction might be that this is a fairly self-destructive submission for counsel to make. But the images of Bridgland ambling towards the deceased are clear for all to see. There is no material to suggest that he was fearful for what might happen to Winter; to the contrary, his apparent bearing and demeanour is casual in the extreme. While he quickens his pace somewhat (accounting for the somewhat erratic appearance of the recorded visual material), he never breaks into a run as he moves toward the deceased.
A review of the video footage demonstrates that the Judge’s above analysis was fully supported by that footage. The defendant’s apparent behaviour and demeanour were casual in the extreme as he approached the deceased. He quickened his pace somewhat, but did not break into a run as he moved towards the deceased. We do not consider that the Judge’s treatment of this topic can be fairly criticised. The defendant joined in the fight, he intended to become a combatant and did so. He was not in any relevant sense acting in self defence or in the defence of another.
Counsel for the defendant only faintly argued contentions concerning the defence of another. As he frankly conceded, the primary question at trial and before this Court was self defence.
Conclusion
We consider that permission to appeal should be granted. However, we do not consider that the Judge erred either in regard to his findings of fact or with respect to his consideration of the issue of self defence or defence of another. We do not consider that the defendant has established that there was any risk of there having been a miscarriage of justice.
We would grant permission to appeal but for the reasons given we would dismiss the appeal.