R v Bridgland, ATS and Winter

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SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v BRIDGLAND, ATS AND WINTER

Criminal Trial by Judge Alone

[2013] SASC 203

Judgment of The Honourable Justice Peek

20 December 2013

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - OTHER ACTS OR OMISSIONS RESULTING IN DEATH

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - GENERALLY

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 - DEFENCE OF ANOTHER

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 - EXCESSIVE FORCE

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE - GENERALLY

Criminal trial by Judge alone.  The three accused were charged with manslaughter relating to the death of a man in the car park of a Hotel during the early hours of 1 September 2012.  Each accused pleaded not guilty.  The accused and the deceased were patrons of the Hotel but the deceased was otherwise a stranger to each of the accused.  The prosecution case against Bridgland was that he was the principal offender and that Bridgland punched the deceased to the left side of his head which caused his death.  Both ATS and Winter were alleged to have been parties to a joint criminal enterprise with Bridgland to assault the deceased in such a way as to expose the deceased to an appreciable risk of serious injury.

Held (Peek J):

1.  Bridgland is guilty of manslaughter as a principal offender.  The prosecution proved beyond reasonable doubt that the person who punched the deceased causing him to fall to the ground, as depicted in the CCTV recorded visual material, was the accused Bridgland.  The punch was a deliberate and voluntary act.  It was a dangerous act in that it exposed the deceased to an appreciable risk of serious injury.  It was an unlawful act in that the prosecution negated beyond reasonable doubt that Bridgland was acting in self defence or defence of another when he punched the deceased.

2.  ATS is not guilty of manslaughter.  The prosecution did not prove beyond reasonable doubt its case that ATS was present in the car park when Bridgland punched the deceased causing the deceased's death and did not prove beyond reasonable doubt that there was any agreement, express or implied, between ATS and Bridgland to assault the deceased in such a way as to expose the deceased to an appreciable risk of serious injury.

3.  Winter is…

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Details
Case
[2013] SASC 203
Decision Date

CaseChat Overview and Summary

In the early hours of 1 September 2012, Henk Van Oosterom, a Dutch national, died after being struck by a blow to the left side of his head in the eastern car park of the Old Bushman Hotel at Gawler. Jason Graham Bridgland, ATS, and Alex George Winter were charged with manslaughter in relation to the death. The trial was conducted before a Judge sitting alone. Following the completion of final addresses by counsel, the Judge found Winter not guilty and acquitted him, reserving judgment on Bridgland and ATS. The Judge's reasons for verdict and final verdicts were delivered on Tuesday, 10 December 2013.

The legal issues the court needed to decide included whether Bridgland acted in self-defence or in defence of another, and whether the second and third accused were parties to a joint criminal enterprise with Bridgland to assault the deceased. The court considered the post-mortem examination, CCTV footage, and evidence from witnesses to determine the circumstances leading up to the fatal blow.

The court concluded that Bridgland was present inside the hotel premises prior to the incident in the eastern car park. CCTV footage and witness testimonies established his presence. The court found that the prosecution had not proven beyond reasonable doubt that Bridgland acted in self-defence or in defence of another. The court also found that there was insufficient evidence to establish that ATS and Winter were parties to a joint criminal enterprise with Bridgland. As a result, the court found Bridgland and ATS not guilty of manslaughter.

The final orders of the court were that Winter was acquitted, and Bridgland and ATS were found not guilty of manslaughter.

Orders

Orders of the court

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Background

Background to the litigation

I find ATS not guilty of the crime of manslaughter.APPENDIX: AGREED FACTS (EXHIBIT P36) A document entitled “Agreed Facts” was received by consent of all counsel as exhibit P36 and appears as follows: Camera positions1.The Diagram “OLD BUSHMAN HOTEL 50103785” is an accurate representation of the interior and exterior layout of the Bushman Hotel as at 31 August – 1st September 2012.2.The position of the cameras 3, 5, 6, 8, 9 10,15 and 16 as at the 31st August-1st September 2012 are as marked with the corresponding number on the Diagram “OLD BUSHMAN HOTEL 50103785” and record events occurring in the general direction indicated by and arrow.Captured images3.The content of the DVD –Video disc P6 (marked “Van Oosterom 01/09/2012 Individuals unlabelled”) contained in the files marked “CCTV”, “CCTV Carpark 4 pers”, “CCTV all pers 50%” and “CCTV all pers 100%” images captured between about 3.00:20 am and 3.01:13 am on the 1st September 2012 by a camera situated in the car park of the Bushman’s Hotel, Gawler.3.1. The images were captured on a camera marked 9 [CH9] on the Diagram “OLD BUSHMAN HOTEL 50103785” and looks onto the northern part of the eastern car park of the Bushman Hotel.3.2. “CCTV”, “CCTV Carpark 4 pers”, and “CCTV all pers 100%” are the same images and play back at the speed at which they were captured.3.3. “CCTV all pers 50%” are the same images as in the files 1.1 above, but play back at 50% of the speed at which they were captured.4.The content of the file called “Mobile Phone” on the DVD –Video disc P6 (marked “Van Oosterom 01/09/2012 Individuals unlabelled”) is images and sound captured by the mobile phone of the witness Bassenese on the 1st September 2012.5.The content of the DVD-Video disc marked in part “CH6 Old Bushman Hotel Entrance to Hotel from outside” are images captured between about 11:13:00 pm and 11:24:00 pm on the 31st August 2012 by a camera marked 6 on the Diagram “OLD BUSHMAN HOTEL 50103785” which is looking generally east along the northern veranda [Area 7] and towards the entry/exit door on Cowan street.6.The content of the DVD-Video disc marked in part “CH8 Old Bushman Hotel Beer garden looking North [PM] AM 02:11:00 – 02:34:00” are images captured between about 2:11:00 and 2:34:00 am on the 1st September 2012 by a camera marked 8 on the Diagram “OLD BUSHMAN HOTEL50103785” which is looking generally North in Area 6 [the beer garden] and towards the exit to this area.7.The content of the DVD-Video disc marked in part “CH8 Old Bushman Hotel Beer garden looking North [PM]AM 02:34:00 – 02:39:00” are images captured between about 2:34 and 2:39 am on the 1st September 2012 by a camera marked 8 referred to in the preceding paragraph.8.The content of the DVD-Video disc marked in part “CH10 Old Bushman Hotel Beer garden looking south” are images captured between about 2:36:00 am and 2:38:00 am on the 1st September 2012 by a camera marked 10 on the Diagram “OLD BUSHMAN HOTEL50103785” which is looking generally south in Area 6 [the beer garden] and towards the Area marked courtyard in Area 6.9.The content of the DVD-Video disc marked in part “CH15 Old Bushman Hotel Bar adjacent to Beer Garden” are images captured between about 2:36.00 am and 2:38.00 am on the 1st September 2012 by a camera marked 15 on the Diagram “OLD BUSHMAN HOTEL 50103785” which is looking generally into Area 8 [the Saloon Bar].10.The content of the DVD-Video disc marked in part “Ch5 Old Bushman Hotel Gaming Entrance” are images captured between about 2:36:26 am and 2:40:09 am on the 1st September 2012 by a camera marked 5 on the Diagram “OLD BUSHMAN HOTEL 50103785” and takes into view the walkway from Area 8 to Area 3.11.The content of the DVD-Video disc marked in part “Ch3 Old Bushman Hotel Exit from Hotel onto Cowan St from inside” are images captured between 2:38:00 and 2:40 am on the 1st September 2012 by a camera marked 3 on the Diagram “OLD BUSHMAN HOTEL 50103785” which is looking generally north and towards the entry/exit door on Cowan street adjacent to the northernmost male toilets, marked as “Male Toilet”.12.The content of the DVD-Video disc marked in part “Ch16 Old Bushman Hotel Exit from Hotel onto Cowan St from outside [PB] AM 02.39:00 - 2.56:00” are images captured between about 2.39:00 and 2.56:00 am on the 1st September 2012 by a camera marked 16 on the Diagram “OLD BUSHMAN HOTEL 50103785” which is looking generally west along the northern face of the Hotel on Cowan street.13.The content of the DVD-Video disc marked in part “Ch16 (Cam) NW Old Bushman Hotel Entrance [PB] AM 02.55:00 - 3.25:00 2012/12/01” are images captured between about 2.55:00 and 3.25:00 am on the 1st September 2012 by a camera marked 16 as referred to in the preceding paragraph.14.The content of the DVD-Video disc P12 (and marked in part “CH8 Old Bushman Hotel Beer garden looking North)” are images captured between 2:29:00 and 3:02:00 am on the 1st September 2012 by a camera marked 8 and referred to in 5 above.15.The time stamp at the bottom left hand corner of the images referred to in 1 to 12 above [the internal clock] is embedded into the images continuously as they are recorded.16.The internal clock shows the time at which an event occurs by reference to the clock of the machine which recorded the data and may or may not be accurate as to the correct time operating in South Australia at that time [correct SA time].17.The time at which an event is recorded as having occurred is consistent across all of the cameras referred to in 1 above, so that an event recorded as occurring, for example, at 03:00:15 on the images recorded from one of the cameras referred to in 1 -12 above is occurring at the same time that an event recorded at 03:00:15 by any of the other cameras referred to in 1-12 above.18.The date embedded on to the images from the internal clock is accurate to correct SA time.Night Key report19.The document titled “Night Key” and marked “Generated on December 2, 2013” [Night Key Report] is a report obtained from the records stored by a company which manages the “Night Key” service as referred to in the evidence of Mr Irving.19.1. The document contains an image of the proof of age card provided to security at the entrance of the Bushman Hotel at about 23:22:32 [ 2. ID Provided] and the image of the person who provided it to them [3.Event Details] at about 23:22:32 on the 31 August 2012.19.2. The time of 23:22:32 is according to the internal clock of the machine which recorded the data and may or may not be accurate as to the correct time operating in South Australia at that time [correct SA time] when the proof of age was presented and the images capture. If it is not the correct SA time then it is at variance with the correct SA time by a matter of minutes either way.19.3. The date is correct.19.4. The document records in “1. Location” the personal details on the proof of age provided and the venue at which the proof of age was provided at that time.20.The single photograph marked on its face “T163” is a copy of the image which is contained on the Night Key report in the section “3.Event Details”.Arrest Photographs21.The 4 photographs containing the sign which reads in part “ELIZABETH Defendant ATS, A.T” are photographs taken at the Elizabeth Police station on the 1st September 2012 of the accused ATS22.The 6 photographs containing the sign which reads in part “ELIZABETH Defendant BRIDGLAND, J. G.” are photographs taken at the Elizabeth Police station on the 1st September 2012 of the accused Bridgland.23.The 4 photographs containing the sign which reads in part “ELIZABETH Defendant WINTER, A.” are photographs taken at the Elizabeth Police station on the 1st September 2012 of the accused Winter.POST MORTEM:24.A post mortem was performed on the body of Henk Van Oosterom, whose date of birth was the 28th May 1973, by Dr Cheryl Charlwood on the 6th September 2012.TOXICOLOGY:25. Deceased25.1. No drugs were detected in deceased’s ante-mortem blood taken on 01/09/12 at 8:10am.25.2. 0.01% of alcohol was detected in deceased’s ante-mortem blood taken on 01/09/12 at 8:10am.26. Bridgland26.1. The accused Bridgland had a breath analysis reading of 0.033% alcohol at 10.25 am on the 1st September 2012.FORENSICS:27.An analysis of a swab of blood staining at marker “F” at the scene and depicted in P3 photographs 15, 20, 23, 24 and 25 provided a single source DNA profile and the comparison between this DNA profile and that of the deceased is extremely strongly supportive of it being sourced from the deceased.

Evidence

Evidence Before The Court

A number of bodies of evidence establish Bridgland’s presence inside the premises of the Hotel during the late evening of 31 August 2012 and the early morning of 1 September 2012 prior to the incident in the eastern car park.Evidence of persons attending the Hotel Mr Justin Webster-Bonser gave evidence that he knew a male by the name of Jason Bridgland and that he first met Jason Bridgland, about 18 months before the subject occasion, at a party where Jason Bridgland was pointed out to him by a friend.[63] He later saw that man for a second time, about 12 months prior to the subject occasion, at the Louisiana Tavern at Elizabeth.[64] Webster-Bonser conceded in cross-examination that Jason Bridgland was not a friend of his and that he would not socialise with him of his own accord.[65] Webster-Bonser stated in his evidence that on the subject occasion he saw Jason Bridgland inside the Hotel:[66]QDid you see the man that you had been told by others was Jason Bridgland inside the hotel that evening?AYeah, I think so.QWere (sic) you say you think so, what do you mean by that?AI mean I was drunk on the night, it was over a year ago so it’s pretty hard to remember.[63] T214-215.[64] T216.[65] T244.[66] T219-220. Mr Thomas Biggs gave evidence that he had seen a male he knew to be “Jason” on the subject occasion at the Hotel. His evidence included the following account of his sighting of “Jason” whilst in the company of himself and Justin Webster-Bonser (who he refers to as “Justin Webster”):[67][67] T269-270.QThe person you knew to be Jason, had you seen him earlier that night?AYeah.QWhere had you seen him?AInside the Bushman’s Hotel.QIn what context did you see him? What was he doing at the time you saw him?AWe were drinking.QWhen you say ‘We were drinking’, who were you drinking with?AMe, Justin Webster and, yeah, a few of his other mates, the Dutch fellow’s other mates.QYou’re drinking with Justin Webster, yourself, some Dutchmen?AAround at the time, yes.QWhere was this man that you believe was Jason at that time?AWe were outside.Q‘We were outside’, does that mean you were outside in the beer garden?AYeah, I’m pretty sure, yeah. I can’t remember like it was yesterday, but yeah. Biggs was unable to describe what Jason was wearing on that night[68] and agreed in cross-examination by counsel for Bridgland that he had only met Jason that night.[69][68] T270, 287 (cross-examination).[69] T287.The “I ♥ bushy” stamp Oberholzer gave evidence that upon arresting Bridgland later during the morning of 1 September 2012, he noticed a stamp on the underside of Bridgland’s right wrist which bore the marking “I ♥ bushy”.[70] This is visible on a portion of the video record of the arrest of Bridgland received (without audio) as exhibit P15. The practice of the Hotel of using that stamp is referred to earlier. This evidence is of little weight standing alone, but it does have some weight as a piece of circumstantial evidence. I take into account the obvious fact that the stamp may have been placed on Bridgland on an occasion somewhat before the subject night, and not washed off.[70] T407-410.The recorded visual material inside the Old Bushman Hotel

Decision

Reasons for decision

PEEK J

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Ratio Decidendi

Legal Principle Established

Established by: PEEK J

Jason Graham Bridgland (Bridgland), ATS (a youth as at 1 September 2012) and Alex George Winter (Winter) were charged with the offence of manslaughter. The particulars of the charge against each accused were that on 1 September 2012 they unlawfully killed Henk Van Oosterom (the deceased). Upon their arraignment the accused each pleaded not guilty and the trial proceeded before me sitting as a Judge alone. On Tuesday, 10 December 2013, following the completion of the final addresses by counsel for each of the accused, I found Winter not guilty and acquitted him. I reserved judgment in respect of Bridgland and ATS. My verdicts in relation to Bridgland and ATS, and reasons for verdict in relation to all three accused persons, follow.Order of consideration I will consider matters in the following order.1Introduction2Directions as to the law generally3The post mortem examination of the deceased4The Old Bushman Hotel and the surrounding environs5The police investigation6The prosecution case against Bridgland7 Did Bridgland act in self defence or in defence of another?8The prosecution case against ATS9Reasons for the previous acquittal of Winter10Formal verdictsAppendix: Agreed facts1. INTRODUCTION In the early hours of 1 September 2012, a Dutch national, Henk Van Oosterom (the deceased) fell to the ground in the eastern car park of the Old Bushman Hotel at Gawler immediately after having been struck by a blow to the left side of his head. He was unable to return to his feet and subsequently died from his injuries on 4 September 2012. The prosecution alleged that the accused Bridgland inflicted that blow and that the second and third accused were parties to a joint criminal enterprise with Bridgland to assault the deceased in such a way as to expose him to an appreciable risk of serious injury. Events leading up to the striking of that blow were the subject of oral evidence and also recorded visual material taken by a number of linked CCTV cameras inside and outside of the Hotel, including a camera in the eastern car park, the recorded visual material from which was admitted as exhibit P6. The locations of the various cameras appear in exhibits P37 and P36, a memorandum of facts agreed as between all three accused and the prosecution and which is attached as an appendix to these reasons. As stated at paragraphs 15 to 17 of exhibit P36, the cameras imbed a continuous time clock on all of the recorded visual material and this time is uniform for all of the cameras (to be referred to as the “imbedded time”). It is to be noted that this imbedded time is not synchronised with true South Australian time. However, although that might be important in some cases, it is not here.[1] [1] One may bear in mind that times given by attending police officers would be given by reference to true South Australian time rather than “imbedded time” but as it transpires any difference is not material to the issues in the present case. On viewing any of the recorded visual material, one notes that the imbedded time is expressed in hours, minutes and seconds. It is possible to stop the recorded visual material and then advance it forward in increments of less than one second corresponding to individual clicks on the hardware. At trial, this was often referred to as advancing by “frames”, although the concept of a frame is now entirely foreign to digitally recorded material. For want of a more helpful term, one may nevertheless refer to “frames” in the sense of the recorded visual material being stopped at a point anywhere within a one second increment.