R v Bridgland, ATS and Winter - [2013] SASC 203

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 not guilty of manslaughter. The prosecution did not prove beyond reasonable doubt that Winter was party to any agreement to assault the deceased.
Criminal Law Consolidation Act 1935 ss 15, 15(1), 15(5), 15B, referred to.
Azzopardi v The Queen (2001) 205 CLR 50; Domican v The Queen (1992) 173 CLR 555; Festa v The Queen (2001) 208 CLR 593; Craig v The Queen (1933) 49 CLR 429; Davies v The King (1937) 57 CLR 170; Pitkin v The Queen (1995) 69 ALJR 612; Alexander v The Queen (1981) 145 CLR 395; Strauss v Police (2013) 115 SASR 90; Colosimo v Director of Public Prosecutions [2006] NSWCA 293; R v Fricker (1986) 42 SASR 436; R v Nguyen (1995) 35 NSWLR 397; Morgan v Colman (1981) 27 SASR 334; Huynh v The Queen (2013) 87 ALJR 434; R v Edwards (No 2) [2009] SASC 233, discussed.
R v Edwards [2007] SASC 202; Jessen v Police (2011) 112 SASR 1; R v Petters [1995] Crim LR 501; R v Walton and Harman [2001] QCA 309; Taufahema v The Queen (2006) 162 A Crim R 152; R v Taufahema (2007) 228 CLR 232, considered.

R v BRIDGLAND, ATS AND WINTER
[2013] SASC 203
Criminal: Trial by Judge Alone
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.
1Introduction
2Directions as to the law generally
3The post mortem examination of the deceased
4The Old Bushman Hotel and the surrounding environs
5The police investigation
6The prosecution case against Bridgland
7 Did Bridgland act in self defence or in defence of another?
8The prosecution case against ATS
9Reasons for the previous acquittal of Winter
10Formal verdicts
Appendix: Agreed facts
1. 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.
Unfortunately, there is no counter or other device displaying at which such frame within a particular increment of one second the screen is paused. More unfortunately, the apparent number of clicks by which the frames may be advanced within any one second increment is not uniform. While one might conduct the experiment of counting the particular number of frames to advance the screen to a particular frame of interest immediately after the imbedded time has moved to a particular fresh increment of a second, I am not at all confident that exactly the same frame would be arrived at on different sets of hardware or indeed on the same hardware on different occasions. To attempt that degree of precision might in fact lead to positive confusion.
The result is that the most specific reference that can be given is to the particular second increment displayed on the imbedded time. A frame of interest may be anywhere amongst the (varying) number of frames for a particular delineated second increment.
Matters of terminology
The Old Bushman Hotel at Gawler will sometimes be referred to as “the Hotel”; the car park in which the events occurred as “the eastern car park”; the blow alleged to have been struck by Bridgland immediately before the deceased fell to the ground as “the fatal blow”; the events in the eastern car park of the Hotel culminating in the striking of the fatal blow as “the eastern car park incident”; and the period of the late evening of 31 August 2012 and the morning of 1 September 2012 at the Hotel as “the subject occasion”.
Assessment of witnesses
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.
2. DIRECTIONS AS TO THE LAW GENERALLY
For present purposes, the crime of manslaughter is committed by an individual when that person deliberately performs an unlawful and dangerous act and thereby causes the death of another person. In the circumstances of the present case, the prosecution must prove beyond reasonable doubt that:
·a punch by Bridgland to the left side of the deceased’s head caused the death of the deceased;
·the punch was a conscious and voluntary act, being the result of the exercise of Bridgland’s will and not the result of an accident;
·the punch by Bridgland constituted an unlawful physical assault upon the deceased 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
·the punch was inflicted without any lawful justification or excuse, such as lawful self defence or defence of another person.
In the present case, the prosecution alleged that, in addition to Bridgland, the persons ATS and Winter were also guilty of manslaughter of the deceased on the basis that each were 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.
In considering the issues which arise for determination, I bear in mind at all times that the accused are presumed to be innocent and do not have to prove that they are innocent. None of the accused is to be convicted unless and until I am satisfied beyond reasonable doubt of his guilt of this charge.
It is necessary to examine carefully all of the evidence in order to determine what evidence is to be accepted and then to consider what inferences can be safely drawn from that evidence. The case against each accused is in many respects circumstantial. No accused person is to be found guilty unless there is no reasonable explanation of all the accepted evidence other than that particular accused is guilty of the crime of manslaughter. To put that another way, if there remains any reasonable hypothesis consistent with the innocence of an accused, that accused must be acquitted.
Whenever I use terms such as “accept”, “satisfied” or “proved” in this judgment I mean accept, satisfied or proved beyond reasonable doubt.
3. THE POST MORTEM EXAMINATION OF THE DECEASED
The deceased was taken for treatment to the Lyell McEwen Hospital and then to the Royal Adelaide Hospital where he was pronounced dead at 10:21am on 4 September 2012. Subsequently, the deceased was taken to the Forensic Science SA Mortuary where, on 6 September 2012, Dr Charlwood performed a post mortem examination.
As at the time of death the deceased was 39 years of age, 195 centimetres (or six feet and 4.7 inches) in height and weighed 104 kilograms.
Dr Charlwood prepared a detailed report which made reference to macroscopic and microscopic brain reports. Those materials were tendered as a bundle (exhibit P10). She also gave oral evidence. I accept Dr Charlwood’s written and oral evidence in full.
In short, Dr Charlwood found that the cause of death was traumatic subarachnoid haemorrhage following a rupture to the left vertebral artery (intracranial).
She explained that a rupture to the left vertebral artery causes it to open and release blood under high pressure into the membrane on the surface of the brain and then into the skull cavity. A CT scan taken at the Royal Adelaide Hospital provided to Dr Charlwood showed bleeding over the surface of the deceased’s brain and blood in the back part of his skull.[2] She gave evidence that this constellation of damage leads to immediate collapse, unconsciousness and cardiac arrest.[3]
[2] T290.
[3] T293-295.
Dr Charlwood gave evidence that a rupture of the vertebral artery is usually associated with a direct blow to the underside of the jaw or the area just below the ear, described as the mastoid region.[4] While such an injury is a possible result of a fall, the shoulder generally protects that region of the body from impact. The most likely cause of the application of force to that region of the body is usually a blow of some kind.
[4] T295.
In Dr Charlwood’s opinion, the bruising observed to the area in and around the jaw and ear on the left hand side of the deceased’s face and head was here consistent with such a blow.[5] She noted that a blow giving rise to the type of bruising observed on the deceased here can also result in the extension and rotation of the head, a mechanism that can rupture the vertebral artery.[6]
[5] T291.
[6] T295-296.
Dr Charlwood gave evidence that, although such injuries may be survivable, they most commonly lead to death.[7]
[7] T297.
In Dr Charlwood’s opinion, the force actually involved in rupturing the deceased’s vertebral artery in this way may be mild, moderate or severe. However, one can only say that severe force has necessarily been used on a particular occasion if bony or cartilaginous injury is observed and this was not observed on the deceased. Accordingly, one can say that at least mild force must have been used to produce the observed bruising but the actual force used may have been greater than mild force.[8]
[8] T297.
I find that the blow delivered (by the person alleged by the prosecution to be Bridgland) to the left side of the head of the deceased immediately prior to him falling to the ground in the car park was the substantial cause of the death of the deceased.
4. THE OLD BUSHMAN HOTEL AND THE SURROUNDING ENVIRONS
The disposition of the Old Bushman Hotel at Gawler as to the building itself, its eastern car park (in which the incident occurred) and its immediate environs were the subject of a good deal of evidence at trial. To help understand that evidence, a view of the Hotel and the Coles car park opposite it was held on 2 December 2013. That view is not to be regarded as evidence in itself.
The immediate environs of the Old Bushman Hotel
Exhibit P1 is a “Google Map” of the immediate area of the Hotel. It is not an aerial photograph, but rather a pictorial representation of what would be seen from directly above. Street names are included, and symbols are used to indicate various local points of interest. Exhibit P2 is an aerial photograph of the area depicted in exhibit P1, but it takes in a greater area than is depicted in exhibit P1; it includes the bearing north and a scale that indicates that a measurement of one centimetre corresponds to a distance of ten metres.
If one assumes that Cowan Street runs in a westerly direction from its junction with Murray Street, Pioneer Park is on the easternmost side of the intersection of where those roads meet. Traffic lights control that junction.[9] The entrance to Pioneer Park is slightly to the north of the pedestrian crossing which runs from Cowan Street to the footpath on Murray Street. A wall separates that footpath and Pioneer Park.
[9] See exhibit P3, photo 2.
The Coles car park
As one travels west along Cowan Street from the point where it terminates at Murray Street in a “T-junction”, one moves away from Pioneer Park and reaches a point where the Hotel appears on the left (on the southernmost side of Cowan Street) with a car park servicing a group of shops including a Coles supermarket (the Coles car park) appearing on the right (on the northernmost side of Cowan Street). This occupies part of the area bounded by the northernmost side of Cowan Street and the westernmost side of Murray Street; namely, an area that is opposite the Hotel but which extends beyond the Hotel frontage to the east and the west along the northernmost side of Cowan Street. The Coles car park is bordered by trees or shrubs and extends to the north and the west; its entrance/exit is almost directly opposite the frontage of the Hotel.
On entering from Cowan Street, the Coles car park entry road slopes reasonably steeply downhill[10] and, depending on one’s vantage point from within the Coles car park, the fall of that road may obstruct one’s view of what is occurring on the opposite side of Cowan Street.
[10] T183.
At the point where one would walk directly across Cowan Street from the Hotel to the Coles car park, the road is approximately ten metres wide. There is no pedestrian crossing; however, a painted median strip appears in the middle of Cowan Street at this point.[11]
[11] See exhibit P3, photo 2.
Excluding the obvious possibility of traffic, no roadside structure that would obscure the view from the frontage of the Hotel to the entrance/exit of the Coles car park (or vice versa) is apparent.
Pioneer Park
Exhibit P2 depicts Pioneer Park as a large open grassed area. Its frontage onto Murray Street is approximately 80 metres. It appears to contain a rotunda, trees and or shrubs, and paths and paved areas. In the north western most corner, there appears to be some form of structure, apparently a statue or monument. In the south eastern most area of the park, which is depicted in exhibit P2, Pioneer Park is bound by a footpath which separates the park from a car park at the rear.

Using the scale on exhibit P2, it appears that the distance from the easternmost wall of the Hotel building[12] to the entrance to Pioneer Park is approximately 100 metres, if travelling in a straight line directly from that easternmost wall of the Hotel to the entrance of Pioneer Park “as the crow flies”.[13]
[12] Consisting of the Gaming Room.
[13] This would entail travelling along Cowan Street itself rather than using a footpath or pedestrian crossings situated at the traffic lights.
These measurements and distances may be slightly reduced (by approximately 10 per cent) if one travels to Pioneer Park from the easternmost side of the entrance/exit of the Coles car park rather than from the Hotel.
Aside from a tree planted in the centre of a median strip at the easternmost end of Cowan Street (which continues until it meets with and terminates at its intersection with Murray Street), there would be an unobstructed view from outside the Hotel to Pioneer Park.[14] Similarly, there would be an unobstructed view from the entrance/exit of the Coles car park to Pioneer Park.[15]
[14] See exhibit P3, photo 2.
[15] See exhibit P3, photo 2.
The Old Bushman Hotel
The Hotel is comprised of the building and a car park to its east (the eastern car park). It occupies an area of land bounded by the southernmost side of Cowan Street and the easternmost side of Light Square. Its frontage faces Cowan Street.[16]
[16] See exhibit P3, photos 1, 3, 4, 5, 8.
Exhibit P3 is a bundle of photographs containing a number of photographs that were taken by Brevet Sergeant McKenzie; some of these depict the exterior of the Hotel. Exhibits P37 and DW1 are scale drawings of the Hotel building signed by the Liquor and Gaming Commissioner and stated to be updated as at 26 June 2013.[17] Exhibits P37 and DW1 appear identical except insofar as that on exhibit P37 there are hand marked arrows and numbers to indicate the correct positions of the various CCTV cameras installed at the Hotel at the time of the incident.[18] These blueprint style diagrams depict the internal walls of the building proper, and the rooms or areas discussed further below.
[17] The plan in force at the time of the incident on 30 August 2012/1 September 2012, the subject of the prosecution case, was not tendered.
[18] See exhibit P36: “Agreed Facts – Camera Positions” paras 1 to 2.
Together, exhibits P3, P37 and DW1 indicate that, if one took up a position on Cowan Street looking toward the frontage of the Hotel while facing south, one would see the following:
·On one’s east, a cream wall around one metre in height, behind which extends the eastern car park adjacent the Hotel building.
·To the west of that cream wall, an entrance/exit or “driveway” to the eastern car park, about the same width as the length of the cream wall.
·To the west of that driveway, the first part of the Hotel building – a single storey section (the exterior of the Gaming Room) which incorporates a small veranda above doors which exit from the centre of the western side of the Gaming Room into the eastern car park, (the Gaming Room doors) and another gazebo type area accessed through doors on the northern wall of the Gaming Room.
·To the west of that Gaming Room part of the building, another single storey section (the exterior of a room housing bathrooms) which juts out from the Gaming Room to abut the pavement which separates the building from Cowan Street itself.
·To the west of the bathrooms, the two storey part of the building, which features, at its easternmost part, the main entrance and exit (which leads to the Front Bar) and, to the south west of the Front Bar, the Dining Area. A veranda that spans the entire length of this section of the building extends over the footpath running parallel with Cowan Street.
Together, exhibits P3, P37 and DW1 also indicate that, if one took up a position in the eastern car park facing west whilst looking at the Gaming Room doors, one would observe:
·To the north, the veranda that extends from the northern wall of the Gaming Room to the footpath which runs along Cowan Street.
·To the south, a tree, and to the further south, another single storey part of the Hotel building which is the exterior of the Saloon Bar.
·To the further south, a cream fence (higher than the cream wall that divides the eastern car park from the footpath on Cowan Street) with metal panelling, which forms the boundary of the Beer Garden.
Together, exhibits P3, P37 and DW1 further indicate that, if one entered the Hotel through the main entrance on Cowan Street, one would enter the Front Bar and:
·If one travelled south, one would approach a doorway to the east that leads to the Saloon Bar and Gaming Room.
·If one turned left and passed through that doorway and entered the Saloon Bar, one would enter the room that housed the ATM (in its north western corner).
·To access the Beer Garden from that area of the Saloon Bar, one would turn right (to face south) to navigate a slight “dogleg” on the way to the double doors at the opposite end of that room and then proceed in a southerly direction through those double doors into the Beer Garden.
·The Beer Garden is an outside area with wooden decking. There is access to the bar in the Saloon Bar through a “window” in the wall that borders its north western corner. Drinks can be purchased from the Beer Garden without needing to exit and re-enter via the double doors which connect it to the Saloon Bar.
The position of the blue utility
Reference will be made to a blue Holden Commodore utility vehicle (the blue utility) which is depicted in the recorded visual material in the car park (exhibit P6) and in various of the photographs in exhibit P3. The evidence establishes that when police commenced conducting investigations (including the taking of the photographs exhibit P3), the blue utility was still parked in the same position as it had occupied at the time of the car park incident. It was inspected by Detective Brevet Sergeant McKenzie visually for blood and dusted for fingerprints, with no positive findings.[19]
[19] T163.
I find that at the time of the car park incident, the blue utility was parked in the eastern car park, on the western side, at a position a short distance to the south of the concrete paving that spans the length of the east wall of the Gaming Room and to the south of the Gaming Room doors covered by the small veranda. It was to the north of the fence separating the Beer Garden from the eastern car park. Its front end was pointing towards the west and it was straddling two separate parking bays outside of the Saloon Bar.
I find that when the deceased first confronted “X” (the person in the recorded visual material exhibit P6 whom the prosecution assert is ATS) at the imbedded time of 03:00:29am on exhibit P6, the two were standing close together, about two metres to the northeast of the northernmost pole that supports the veranda over the Gaming Room doors. The distance from this point to the blue utility was between approximately 7.5 and 8.5 metres.
I find that when, shortly thereafter, at the imbedded time of 03:00:31am on exhibit P6 the deceased and Winter were standing close together, they were slightly to the north of the same northernmost pole that supports the veranda over the Gaming Room doors; that the distance from this point to the blue utility was approximately 6.5 and 7.5 metres; and that the deceased pushed Winter backwards and toward the blue utility over approximately that distance.
The operation of the Old Bushman Hotel at the relevant time
At the relevant time, the Hotel generally remained open later than other establishments in Gawler and was a congregating point for late night drinkers.
Mr Mathew Humphrys (a security guard contracted at the time to work as a bouncer at the Hotel) gave evidence that as at the date of the subject occasion, what was known as the Nightkey system had been in use for three to four months. The process for gaining entry to the Hotel was to produce photographic proof of age, which was then scanned into the Nightkey system or, alternatively, to provide a fingerprint which was cross-referenced to previously scanned identification information. Either procedure was to be accompanied by a $5.00 cover charge paid upon entry by the patron.[20] Recorded visual material shows a line of people undergoing these procedures on the night of 31 August 2012 at the main entrance to the Hotel off Cowan Street.
[20] T1720-173.
Mr Justin Irving, the proprietor of the Hotel, gave evidence that security personnel would sometimes apply stamps to patrons for the purpose of promoting the brand name of the Hotel[21] and that a particular design of stamp, “I ♥ bushy”, was in use as at the night of 31 August 2012.[22] (See also exhibit P13).
5. THE POLICE INVESTIGATION
[21] T339.
[22] T339-340.
Attendance of Twiggs and Oberholzer at Pioneer Park
Senior Constable Twiggs gave evidence that at just after 3:00am on 1 September 2013, he and Constable Oberholzer were on mobile uniform patrol travelling west along Cowan Street in Gawler. At about that time,[23] they were flagged down by a female outside the Hotel, and given some information including that some people had run off in the direction of Pioneer Park.[24] At this time, the officers knew that there had been some sort of fight at the Hotel but were unaware that somebody had been seriously injured.[25] Twiggs executed a “u-turn” and as he drove towards Pioneer Park he noticed three figures running up the slight hill at its entrance.
[23] I refer elsewhere to the potential conflict between true South Australian time and the “imbedded time” of the recorded visual material at the Hotel. In some cases, as in R v Edwards [2007] SASC 202, this might be important but no such issue arises in the present case.
[24] T353.
[25] T365.
Upon entering Pioneer Park, Twiggs initially saw two people sitting on a park bench[26] but after getting closer to them, he saw a third person standing about five metres away.[27] Twiggs approached the two males seated alongside each other on the park bench; he noticed that they were breathing heavily or puffing.[28] Twiggs commenced speaking with the two, asking who they were, why they were in Pioneer Park, and whether they knew anything about an incident at the Hotel.[29]
[26] T353-354.
[27] T353-353.
[28] T355.
[29] T355.
Twiggs gave evidence that he was told by one of them that they had been sitting at the bench for 20 minutes.[30] Counsel for both ATS and Bridgland objected to the evidence of the making of this statement in circumstances where it could not be proven which of the two persons made the statement.
[30] T359.
I consider that the objection has merit. While the evidence that both appeared to be out of breath was admissible, the above statement was not admissible since it could not be sheeted home to either one or the other of the two accused and I do not think that it could sensibly be said to have been adopted by the non-speaker in all of the circumstances here. If the evidence were technically admissible, I would in any event exclude it on the basis that any probative value it may have is greatly outweighed by its prejudicial effect. I disregard the evidence.
One of the men identified himself as MROS[31] and the other identified himself as “Ashley Michael Bridgland”.[32] Twiggs asked for identification and both males said words to the effect that “they have none”.[33] Both men also responded by emptying their pockets and inviting Twiggs to check.[34]
[31] The surname given corresponds to the older brother of the youth ATS. Accordingly “MROS” has been adopted to prevent identification of ATS through the shared surname.
[32] T356.
[33] T357.
[34] T360.
When feeling the pockets of the man who had identified himself as MROS, Twiggs felt a small rectangular item which he removed, finding it to be a proof of age card bearing the name given.[35] Twiggs used his torch to illuminate the card, and compared the photograph to that man’s face. He gave evidence that “they resembled each other” but that the man depicted in the proof of age card had longer messier hair – though its dark colour appeared to be a common feature.[36] Twiggs further described the man before him (who he considered to resemble the man in the photograph) as five foot six inches, skinny, and of Italian or Greek descent; the man was wearing a black hooded jumper, dark jeans, and “skatey shoes” (a comfortable style of sneaker type footwear) which were dark in colour with what he described as “Fluro green” laces.[37]
[35] T360.
[36] T362.
[37] T362-363.
Twiggs then questioned the man who gave his identification details as Ashley Michael Bridgland, date of birth 15 August 1991, residential address of 3 Cardiff Court, Craigmore.[38] Twiggs gave the following description of that male’s appearance as he observed it by torch light:[39]
[38] T357.
[39] T363.
QThe man whose details were given to you as Ashleigh Michael Bridgland, so Mr Bridgland’s appearance, what was that when you saw him?
AAboriginal, tall, taller than me, so approximately 6’1”, not skinny, solid build, he had a beard, or a short beard or long stubble.
QWhat clothes was he wearing; let’s start first of all with his upper body?
AHe was wearing a dark-coloured jumper.
QWhat part of his face were you able to see when you looked at him?
AI could see his face.
QI mean by that was his head covered in any fashion?
AHe had a hat, a baseball cap.
QAre you able to tell us what that baseball cap looked like?
AYeah, it was a black baseball cap with a red brim.
QSorry?
AA red peak, brim.
QWas that worn in any particular style when you spoke with him?
AI can’t recall.
QAs trousers what did he have on?
AI can only recall he had jeans on, I can’t recall what colour.
Twiggs attempted, but was unable, to complete further identification checks using the in-vehicle computer system.[40] His attention was then drawn to the entrance of Pioneer Park where he saw a group of people coming toward him.[41] He heard a voice yelling and recognised that voice as that of the woman who had flagged the police car down on Cowan Street. He heard her attempting to dissuade the group from entering the park because the police were handling the situation.[42]
[40] T364.
[41] T364.
[42] T364.
Oberholzer stated that while Twiggs had approached the two males at the park bench, he had approached and conversed with the third male who proved to be Justin Webster-Bonser.[43] Oberholzer then directed the group approaching the park entrance to leave and, after doing so, approached the two males on the park bench to see what they looked like.[44] He observed them by torch light and made the following observations of the male to his left:[45]
QAre you able to give any description of either of those two males?
AI could describe the male that was sat on the left-hand side as I’m facing him, so to my left-hand side, as being a larger, taller male, and the male sat on the right-hand side as being smaller with a younger-looking face.
QDid you note anything about the appearance of the male on your left?
AI thought he had a darker complexion, so darker face than the male on my right.
[43] T355, T402-403.
[44] T404.
[45] T404-405.
After Twiggs had recorded the details given to him by the two men and directed them to move on, the police left Pioneer Park to investigate more fully what had happened at the Hotel.[46]
[46] T365.
The arrest and identification of ATS at 94 Alawoona Road, Munno Para
Later that morning, at about 7:30am, Twiggs, Oberholzer and Detective Brooker attended 94 Alawoona Road, Munno Para to speak to the man who had identified himself as “MROS” in Pioneer Park. Whilst at the front door alongside Brooker, Twiggs saw through the screen door a male and a female in the doorway.[47] Twiggs gave evidence that upon seeing police officers the male stepped backwards. The officers informed the occupants that they were searching for MROS but were told by the female that he was not at home.[48] Twiggs nevertheless recognised the male at the door and called out to him, telling Brooker that that male was the male he had seen at Pioneer Park.[49] Brooker arrested that male, who proved to be ATS rather than his brother MROS, whose proof of age card he had shown to police in Pioneer Park. Twiggs confirmed in Court that the accused ATS sitting in the dock was the man who was arrested at his home at 94 Alawoona Road and was also the same man he had seen in Pioneer Park.[50]
[47] T369.
[48] T369.
[49] T369.
[50] T370.
The clothing of ATS seized at 94 Alawoona Road, Munno Para
Various items of clothing were seized by the officers when arresting ATS including a dark coloured hooded jumper bearing the word “HURLEY” across the chest in grey print (exhibit P16), a pair of blue jeans of a loose fit style (exhibit P17), and a pair of dark coloured “Nike” branded shoes of a casual sneaker style with laces that at the date of trial appear to be yellow in colour (exhibits P17 and P18).
The arrest and identification of Bridgland at 15 Hamra Drive, Smithfield
Twiggs gave further evidence that, in the company of Detective Brooker and Oberholzer, he attended 15 Hamra Drive, Smithfield during the morning of 1 September 2012.[51] On being admitted to the premises, the officers went to a bedroom and there saw a male in bed that Twiggs positively recognised as the person in Pioneer Park who had given the name “Ashley Michael Bridgland”.[52] Twiggs stated, “I recognised his face. The beard was obviously the same as the male I’d spoken to”.[53] That male was thereupon arrested. He was Jason Graham Bridgland, the accused Bridgland now before the Court.[54]
[51] T371.
[52] T371.
[53] T372.
[54] T371-372.
Oberholzer gave a similar account of the attendance at 15 Hamra Drive.[55] He stated that he recognised the male found lying in bed in a bedroom at that address as “[t]he male on the left, the bigger of the two males, the taller” he had spoken to earlier that morning at Pioneer Park.[56]
[55] T406.
[56] T406, 409.
The clothing of Bridgland seized at 15 Hamra Drive
The police found clothing immediately adjacent to Bridgland lying in bed at 15 Hamra Drive. This was seized by them and tendered in evidence at trial. Detective Brooker gave evidence that he seized a cap (exhibit P20), a dark coloured jumper with a hood (exhibit P21), a pair of dark blue jeans (exhibit P22), and a pair of “Nike” branded shoes (exhibits P23 and P24).[57]
[57] T419-421.
Twiggs also gave evidence that he observed several items of clothing within the room in which the accused Bridgland was found.[58] He stated that “it was the same black cap with a red peak or brim as the one I’d seen the night before, or during the night. … It was the same cap”.[59] Twiggs also said that the jumper was the same, to the best of his recollection.[60]
Exhibit P20: a baseball style cap.
[58] T372.
[59] T372.
[60] T372.
Exhibit P20 is a baseball style cap. It has a predominantly black crown with a red fabric button at its apex. The crown also has a coloured motif embroidered on its face immediately above the brim which has the word “BULLS” and an image of a bull head underneath in white and red. Red fabric eyelets are sewn into the top which is comprised of six sections of fabric. Five diagonal diamond shapes incrementally increasing in size from about 4.5 centimetres to 10.5 centimetres appear alternately in red and white on the left and right sides of the cap. The brim is red and bears a silver reflective disk which is affixed to the brim, apparently as some kind of mark of authenticity. It is within the purview of judicial notice, and thus not requiring specific evidence, that a shiny metal surface such as this may well give off reflections of light under many conditions.

The brim is stiffened by some sort of plastic which causes its shape to be straight and level rather than of the concave appearance sometimes seen. The rear of the cap bears the logo of the American NBA, which is red, white and blue in colour, below which is an adjustable hard plastic band used to fit the cap to the wearer’s head.
Exhibit P21: a black-coloured hooded jumper with long sleeves
Exhibit P21 is a black hooded jumper with long sleeves. It bears a faded white coloured motif across the torso and chest area at the front of the garment. The word “HURLEY” appears across the upper chest area in the same faded white colour print, just below the neckline.
Exhibit P22: a pair of dark blue denim jeans
Exhibit P22 is a pair of dark blue denim jeans which appear to be of the loose fit variety.
Exhibits P23 and P24: a right and left shoe
Exhibits P23 and P24 comprise a right and left shoe, respectively, seized from the same location. They are “Nike” branded, size US 11, and are predominantly white with navy blue accents. They each bear the word “AIRMAX” embroidered in red across the outside face of the side of each shoe.
6. THE PROSECUTION CASE AGAINST BRIDGLAND
The prosecution case against Bridgland was that he caused the death of the deceased by striking one punch to the left side of his head while adjacent to a blue utility in the eastern car park of the Hotel at about 3:00:52am[61] on 1 September 2012. It is alleged that that act of punching was a voluntary and deliberate act done with an intention to strike the deceased in the head area in circumstances where a reasonable person would have realised that he was exposing the deceased to an appreciable risk of serious injury. Further, it was alleged that the punch was delivered without any lawful justification or excuse such as lawful self defence or defence of another person.
[61] The imbedded time in the recorded visual material in exhibit P6 at which it is submitted that the fatal blow is depicted as being dealt.
During the course of the trial, it became apparent that the prosecution was being put to proof of the identity of the man who delivered the fatal blow, and also to disprove that it occurred in the course of either self defence or defence of another. Counsel for Bridgland submitted that there was no case to answer on the basis that there was no evidence capable of proving that it was Bridgland who delivered the fatal blow. I found a case to answer. Counsel then elected not to call Bridgland or any other evidence. Counsel for Bridgland submitted in closing address that:
·It was not proven that Bridgland was at the Hotel at all on the night of the subject occasion;
·If he was inside the Hotel, it was not proven that he was in the eastern car park;
·If he was in the eastern car park, it was not proven that he delivered the fatal blow; and
·If he did deliver the fatal blow, it was not proven that he was not acting in self defence and/or defence of another.
I will approach the case having particular regard to those submissions. I do not draw any inference from the decision of Bridgland not to give evidence. I direct myself in accordance with the judgment of Gaudron, Gummow, Kirby and Hayne JJ in Azzopardi v The Queen that:[62]
[51]… the accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. …
[62] (2001) 205 CLR 50, 70.
Evidence identifying Bridgland as the person who struck the fatal blow
In overview, the prosecution asserts that it is proven beyond reasonable doubt that Bridgland was the striker of the fatal blow through the cumulative effect of the following items of evidence:
1       Witness evidence that Bridgland was inside the Hotel before closing time and evidence of recorded visual material inside the Hotel showing a male closely resembling Bridgland’s appearance (as depicted in his arrest photograph taken later that day) and wearing clothes (and especially the cap exhibit P20) closely matching the items seized from 15 Hamra Drive;
2      Evidence by Thomas Biggs that he saw a male he knew as “Jason” administer the fatal blow in the Hotel eastern car park, causing the deceased to drop to the ground;
3      Other witness evidence that the male to whom Thomas Biggs refers as “Jason” is in fact the accused Jason Bridgland;
4      Evidence of recorded visual material (exhibit P6) showing a male closely resembling Bridgland’s appearance (as depicted in his arrest photograph taken later that day) and wearing clothes (and especially the cap exhibit P20) closely matching the items seized from 15 Hamra Drive, was present in the eastern car park and that he delivered the fatal blow to the deceased;
5      Evidence by Humphrys that he saw a male of Aboriginal appearance, whom he had previously seen at the Hotel, in a group running from the eastern car park just after the incident in that car park;
6      Evidence (previously referred to) that Bridgland was seen in Pioneer Park by Justin Webster-Bonser and police officers Twiggs and Oberholzer shortly after the eastern car park incident;
7      Evidence (previously referred to) that Bridgland was later that morning seen by police at 15 Hamra Drive, Smithfield when he had a stamp on the underside of his right wrist which bore the marking “I ♥ bushy” and evidence given by Irving, that the stamp “I ♥ bushy” was one which was in use by the Hotel (although at the discretion of security) as at 31 August 2012 (see also exhibit P13).
I turn to consider these matters in greater detail.
Identification of Bridgland inside the Hotel
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
A male apparently of Aboriginal descent (who on the prosecution case is Bridgland) is seen on various occasions in the recorded visual material inside the Hotel on the subject occasion. The items of clothing seized by police at 15 Hamra Drive (described in detail above) closely match those worn by that male in the recorded visual material, especially that contained in exhibits P27 and P32.
In exhibit P27 (channel 6, depicting the entrance to the Hotel off Cowan Street) a male wearing a cap with a red brim and a black crown on backwards can be seen entering the frame from the bottom of the screen between the imbedded times of 11:13:57pm to 11:13:59pm. There appears to be a light coloured motif on the face of the cap immediately above the brim. The male is also depicted wearing a dark coloured hooded jumper, dark pants and white coloured shoes with dark accents. At 11:14:00pm there appears a flash of light on the top of the red brim of the cap which may correspond to the silver disk on the brim of exhibit P20 catching the light as the male passes beneath a light. This flash again occurs at 11:14:22pm. At 11:14:29pm, as the male turns towards the camera, a light coloured motif can be seen on the front of his jumper matching the jumper (exhibit P21) seized by police.
Again in exhibit P32 (channel 5, depicting the entrance to the Gaming Room), the clothing depicted on the male described above also closely matches that seized by police during the arrest of Bridgland at 15 Hamra Drive. Importantly, this recorded visual material very clearly depicts that male. He appears in that particular area between the imbedded times of 2:37:08am and 2:37:55am. At 2:37:12am, 2:37:33am and 2:37:50am, that male is clearly shown as
·being of Aboriginal appearance;
·with heavy facial hair;
·wearing a baseball cap with a black crown and red brim on backwards;
·wearing a dark coloured hooded jumper with a light coloured motif bearing the characters “HURLEY” and dark jeans; and
·wearing white shoes with some dark accents clearly seen.
I find that the recorded visual material of this male’s general and facial appearance very closely matches the general and facial appearance of Bridgland in his arrest photographs (exhibit P41) taken later that morning.[71] I also find that the clothing (and cap) worn by the male depicted in the recorded visual material as described above exactly matches the clothing (and cap) seized by police from the bedroom at Hamra Drive during the arrest of Bridgland (being exhibits P20, P21, P22, P23 and P24).
[71] See Agreed Fact 22.
Identification of Bridgland in the eastern car park of the Old Bushman Hotel
The prosecution relies on a number of items of evidence to establish that Bridgland was in the eastern car park after closing time, between 2:30am and 3:05am.
Mr Jake Commins
Mr Jake Commins stated in examination-in-chief that during the assault perpetrated on him (prior to the fatal blow to the deceased) by the person “X” (“X” is the person the prosecution allege to be ATS) he did not respond or attempt to defend himself against “X” as he was concerned by the presence of another tall male[72] with facial hair and wearing a cap standing behind “X”; it was Commins’ belief that if he struck out against “X”, this would bring that second male into the fight.[73]
[72] Commins stated that this male was taller than him. Commins at the time of the trial was 180 centimetres in height or 5 feet 11 inches.
[73] T185-186.
Mr Thomas Biggs
Mr Thomas Biggs gave evidence that he saw the man he knew as “Jason” in the eastern car park after the Hotel closed for the night. It was his evidence that “Jason” was the person who dealt the fatal blow to the deceased, causing him to drop to the ground. Biggs described what occurred as follows:[74]
[74] T268-269, 273, 274.
QThen what?
AThen I seen the Dutch fellow get hit from the side.
QHow was the Dutch fellow hit from the side?
ANot 100%. Can’t remember.
HIS HONOUR:
QEven if you’re a bit less than 100%, you tell us what you saw? You say you saw him get hit.
AYes.
QWhat did you see?
AI seen him get hit and drop, whatever.
QWho hit him?
AJason.
…
QDid you see the blow land?
AI don’t have a good memory of seeing the blow land but I seen the Dutch guy drop to the floor.
Biggs described “Jason” as having been moving at the left hand side of the blue utility when Winter fell to the ground.[75] Biggs was then asked:[76]
QWho’s Jason?
AI know of him.
QThe person whose name you believed to be Jason hit the Dutchman?
AYeah.
[75] T273-274.
[76] T269.
Biggs gave further evidence that he later got a lift home with his friend Brenton McEwan-Stephens from a position near a service station just down from the Hotel,[77] and that McEwan-Stephens also gave a lift to “Justin Webster, Winter, Jason and another guy”.[78] Biggs went on to state that this was the same “Jason” he had seen earlier in the night and the same person he had seen hit the deceased before he fell to the ground:[79]
QAnd Jason?
AYeah.
QDo you mean by that the Jason that you’d seen in the pub earlier that night?
AYes.
QAnd the Jason that you’d seen hit the big Dutch guy?
AYep.
[77] T275.
[78] T275.
[79] T275.
Mr Webster-Bonser
Mr Justin Webster-Bonser gave evidence that the man he knew as Jason Bridgland approached him and his group (comprising himself, Biggs and Winter) and asked for a lift home:[80]
[80] T246.
QOnce you are out the front of the hotel, you are spoken to or one or other of your group is spoken to by Mr Bridgland or the person you believe to be Mr Bridgland?
AYep.
QThat was about getting a lift?
AYep.
QDid he speak to you or Alex Winter, do you recall who?
AI can’t remember who, no.
QWas it the case that a lift couldn’t be given because there wasn’t enough room?
AYep.
Mr Mathew Humphrys
Mr Mathew Humphrys was a security guard on duty on the subject occasion. He gave evidence that he had exited through the Gaming Room doors in order to investigate a fight of which he had been notified, and that he thought he recognised a particular individual within a group he saw running to his left following the deceased falling to the ground:[81]
[81] T313-314.
QDid you see anyone in that group that was running to the left that you'd seen earlier in the evening?
AYes.
QFirst of all, how many people in that group did you recognise as being people you’d seen earlier in the evening?
AI had definite recognition of one person and another one I believe I seen that night.
QWhat did the one that you have said you definitely recognise look like? About how tall was he?
AI would have said about 5’9”.
QWhat was his build like?
AMedium to stocky.
QWhat was he wearing?
AI can’t exactly remember. I think it was a jumper.
QDid he have anything on his head?
AI can’t remember sorry.
QAnd was there anything else about that person that you took note of?
AHe was dark skinned.
QWhat do you mean by that?
ALike Aboriginal appearance.
QNow you said that you recognised him. Do you mean by that that that was the man who had been in the hotel earlier that evening?
AYes.
Humphrys later stated that he recognised this man and knew him to be Aboriginal as he had spoken to him in the past but did not know his name.[82]
[82] T320.
The recorded visual material of events in the eastern car park (exhibit P6)
The items of clothing seized by police at 15 Hamra Drive (described in detail above) closely match those worn by the male asserted by the prosecution to be Bridgland in the recorded visual material depicting the events in the eastern car park leading up to the fatal blow (exhibit P6).
This male appears from the left hand side of the screen at the imbedded time of 3:00:40am. He can be seen wearing a dark coloured jumper, dark pants and white shoes. At 3:00:42am, one sees that he is wearing a baseball style cap on backwards. As the light in the top left hand corner of the screen area catches the cap, one can see that it appears to have a black crown with a light coloured motif on its face immediately above the brim. At 3:00:44am to 3:00:45am, a red colour can be seen in the front area of the cap (taking into account that it is being worn backwards), suggestive of a red brim; this appears again at 3:01:05am to 3:01:06am as the male turns to his left to face backwards, bringing the rear of his head and the front of the cap into the beam of the light.
At 3:00:52am, 3:00:56am, 3:01:00am to 3:01:02am and again at 3:01:04am to 3:01:05am, a light coloured motif can be seen across the torso area of the male’s dark jumper as he turns towards the camera and the light of the car park.
At 3:00:52am, this male is seen punching the deceased to the head, whereupon the deceased falls to the ground between 3:00:52am and 3:00:54am.
Identification of Bridgland in Pioneer Park
The evidence clearly establishes that Bridgland was at Pioneer Park within minutes of the fatal blow to the deceased.
Justin Webster-Bonser gave evidence that after he saw the deceased fall to the ground in the eastern car park, he followed Biggs and Winter as they ran to Pioneer Park. Once they entered the park, Biggs and Winter ran to the right. Webster-Bonser attempted to follow them but fell over at some point;[83] he then observed a police car in the park, got up and sat on a nearby statue. He gave evidence that at this stage there were two other males with him in the park:[84]
[83] T231.
[84] T234.
QThe man you thought was Alby Taylor at the car, was he the same man that had been in the park with you?
AYes.
QWhen they were in the park with you were they breathing normally?
AI can’t remember.
…
QAnd Mr Bridgland?
AYeah, the same, all together in the park.
QWhat were they doing when you first saw them in the park?
ASitting on the park bench.
It was then that Oberholzer spoke to Webster-Bonser while Twiggs spoke to Bridgland and the other man who was known to Webster-Bonser as “Alby Taylor”.[85] All three males were eventually permitted to leave the park as discussed above.[86]
[85] T232.
[86] T323-233.
Bridgland was later in the car driven by Brenton McEwan-Stephens
Two of the witnesses gave evidence that Bridgland was one of a group of males later given a lift by McEwan-Stephens after the incident involving Twiggs and Oberholzer in Pioneer Park.

Webster-Bonser gave evidence that, having been released by the police, he left Pioneer Park with the other two males following him. They walked together to the car park behind the Exchange Hotel where Webster-Bonser saw McEwan-Stephens in his car together with Winter and Biggs. He gave the following evidence as to those present at McEwan-Stephens’ car:[87]
QSo you are at the car, Winter is at the car, Mr Biggs is at the car, Brenton McEwan is there because it’s his car.
AYes.
QAlby Taylor is there. Is anyone else there?
AAnd the man I think to be Jason Bridgland.
QWas that man at the car the same bloke who had been in the park with you?
AYes.
[87] T233-234.
Webster-Bonser’s evidence was that the car then set off with each of those individuals present being given a lift[88] and that at some point during the journey they arrived at a house in Smithfield where the male known to him as Jason Bridgland left the car with “Alby Taylor”.[89]
[88] T233-234.
[89] T235.
I here mention the evidence led that Webster-Bonser specifically recalled a remark made by Jason Bridgland during the course of the journey:[90]
QWas there any discussion in the car about the Bushman’s Hotel car park?
ATom said that he’d seen an ambulance in there and someone doing CPR on the Dutchman.
QWas there any comment made about that?
AJason Bridgland said ‘Oh, don’t say that, man’.
[90] T234.
This evidence was not specifically objected to. However, it is difficult to formulate the precise way in which it can legitimately be used against Bridgland. On the one hand, it does not tend to prove that the maker of the statement was Bridgland. On the other hand, even if other evidence proves that Bridgland was the maker of the statement, the statement itself does not evince esoteric knowledge by him and nor does it constitute an admission that he was responsible for the plight of the deceased.
If the case had been a trial by jury, I would have excluded the evidence on the basis that its prejudicial effect greatly outweighed any probative value it may have. In the circumstances of a trial by Judge alone, I find it to have no weight. I disregard it.
Particular defence arguments
Apart from relying on the dangers of identification evidence generally, counsel for Bridgland made two main positive submissions in support of the proposition that Bridgland was not present on the subject occasion.
Bridgland is not recorded in the Nightkey system as attending the Hotel on the subject occasion
The first submission was that there was no record of any attendance by Bridgland recorded on the Nightkey system on the subject occasion.[91] However, while I take that into account, I find for several reasons that the absence of such a record does not establish his absence from the Hotel.
[91] A document entitled “Nightkey Police Report NK-1497276” was received as exhibit P38 (see also Agreed Fact 19). The document purports to record the attendance at the Old Bushman Hotel of a MROS at 11:22pm on 31 August 2012. No mention is made therein of the accused Bridgland.
The first reason is that the evidence of the security guard on duty on 31 August 2012, Humphrys, was that the system, and more particularly its implementation, was not infallible. As he stated in cross-examination:[92]
QJust one other thing: in order for anybody to get into the Bushman’s Hotel on that night did everybody have to produce ID and get their fingerprints taken?
AYes, they are meant to - occasionally some people know the owners or know the guard that’s out the front for an extended period of time or other times people open side doors and let their mates in. We get around to it as fast as possible but - (Emphasis added)
[92] T317.
The second reason is that the recorded visual material taken by a camera outside of the Hotel at the entry off Cowan Street on the night of 31 August 2012 (exhibit P27), depicts a male consistent in appearance with Bridgland seeming to enter the Hotel’s premises surreptitiously at the imbedded time of 11:16:50pm to 11:16:51pm. That male is seen at 11:13:57pm to 11:13:59pm to be wearing a baseball cap with a red brim and a black crown on backwards, a dark coloured hooded jumper, dark pants, and light coloured shoes. He then approaches the Nightkey device from 11:15:56pm to 11:15:58pm; then approaches the security guard at 11:16:08pm; then approaches the Nightkey device again at 11:16:10pm to 11:16:19pm. Shortly thereafter, he approaches the security guard again at 11:16:19pm to 11:16:22pm and then moves out of frame at the top of the screen by 11:16:35pm. He appears to return quickly at 11:16:48pm when a male appears in the entrance doorway and the security guard appears focused on a group of females just in front of the Nightkey device; at this point the individual appears to slip into the Hotel unnoticed. I acknowledge that the relatively poor quality of this particular recorded visual material does not, of itself, permit a finding beyond reasonable doubt that the individual there depicted is necessarily Bridgland. However, it does permit a finding that it was quite possible to avoid the Nightkey system and to enter the Hotel at the relevant time.[93]
[93] See also exhibit P28. This exhibit shows recorded visual material taken from channel 8, a camera looking north into the Beer Garden of the Old Bushman Hotel. Between the imbedded times of 2:12:07am and 2:12:44am in the top right hand corner of the frame, a male can be seen to climb over the Colorbond fence which divides the Beer Garden from the eastern car park from the car park side and then sit atop that fence before returning to the car park.
A plethora of caps?
The second submission by counsel for Bridgland was that there were a number of males present at the Hotel at the relevant time wearing caps depicted in the recorded visual material. This submission was no doubt intended to derogate from the weight of the most distinctive item of clothing seized from Bridgland, his cap (exhibit P20) which appears to be the same cap worn by the male seen in the recorded visual material in exhibits P27, P32 and in P6 as discussed above. However, even when specifically requested to supply references to the relevant imbedded times on the particular exhibits when these persons could be viewed, counsel declined to do so.
It has therefore been necessary to conduct a review of all of the admitted recorded visual material in this regard. That review has disclosed only seven males (including the male asserted to be Bridgland) wearing caps. However, apart from the male asserted to be Bridgland, only one of the other six males can be seen wearing a cap in any way resembling the cap in exhibit P20. This male enters the frame at the imbedded time of 11:14:42pm to 11:15:05pm, and returns between 11:21:29pm to 11:23:26pm. He wears what appears to be a baseball style cap on backwards with a purple crown and a red or orange brim. That cap is clearly distinguishable from exhibit P20, plainly having a purple instead of a black crown. Perhaps more importantly, that male is wearing a grey long sleeved top with dark coloured baggy pants and is a short, skinny, non-Aboriginal individual. His clothing and appearance do not at all match the clothing or the appearance of the male who strikes the fatal blow to be observed in exhibit P6. I find beyond reasonable doubt that the male wearing the cap with the purple crown is not Bridgland; that he does not appear anywhere in the recorded visual material taken in the car park (exhibit P6); and that he is not the person who administered the fatal blow to the deceased. I dismiss him (and all other cap wearers recorded in the recorded recorded visual material, apart from the man asserted by the prosecution to be Bridgland) from consideration as having any involvement with the death of the deceased.
Findings as to the identification of Bridgland
In making findings as to the identification of Bridgland, I warn myself that there are serious dangers associated with identification and recognition evidence. Those matters are discussed by the High Court in such cases as Craig v The King,[94] Davies v The King,[95] Alexander v The Queen,[96] Domican v The Queen,[97] Pitkin v The Queen[98] and Festa v The Queen,[99] and in many decisions of State Courts of Criminal Appeal. In a case to which counsel referred on a number of occasions during the present case, namely Strauss v Police,[100] I attempted to draw some of the principles together and I notionally repeat those principles here.[101]
[94] (1933) 49 CLR 429.
[95] (1937) 57 CLR 170.
[96] (1981) 145 CLR 395.
[97] (1992) 173 CLR 555.
[98] (1995) 69 ALJR 612.
[99] (2001) 208 CLR 593.
[100] (2013) 115 SASR 90.
[101] Strauss v Police (2013) 115 SSR 90, 97-104 [12]-[37].
As to the oral evidence here, I take into account all relevant matters including that witnesses (including honest and confident witnesses) can be quite wrong in identifying persons and that miscarriages of justice have not infrequently occurred because of this. I take into account that most of the witnesses at the Hotel had been drinking alcohol, describing themselves as drunk or intoxicated to varying degrees. I note that the events in the eastern car park were fast moving, stress inducing and distracting, and occurred at about 3:00am in circumstances of less than ideal illumination. I take into account that multiple witnesses purporting to identify a person as the perpetrator of a crime being investigated may all be wrong, perhaps due to the common cause that the person in question does strongly resemble the actual perpetrator. I take into account the inconsistencies in the present case within the evidence of individual witnesses and as between individual witnesses.
As to the recorded visual material, I have viewed this material a number of times. I take into account the dangers, or potential dangers, associated with such evidence as adumbrated in such cases as R v Edwards (No 2).[102]
[102] [2009] SASC 233.
While in no way minimising the above matters, it may be said that the present situation does involve a form of recognition evidence rather than classical identification evidence and that the evidence matrix here has the added ingredients of distinctive clothing (particularly Bridgland’s cap) and a good deal of recorded visual material, some of good quality (although some is of lesser quality).
Having full regard to the dangers of identification evidence, 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:
1Bridgland was inside the premises of the Old Bushman Hotel at various times on the subject occasion prior to the eastern car park incident.
2Bridgland 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,[103] Bridgland 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.
3Bridgland was later one of the two males spoken to by Senior Constable Twiggs in Pioneer Park in the company of Constable Oberholzer.
4Bridgland was still later present in the car driven by McEwan-Stephens (being given a lift) in the morning of 1 September 2012.
5Bridgland was the male still later found and arrested in the bedroom at 15 Hamra Court, Smithfield by Senior Constable Twiggs, Constable Oberholzer and Detective Brooker on the morning of 1 September 2012. (This last matter is not disputed by Bridgland.)
[103] This is the “imbedded time” in the recorded visual material (exhibit P6) and may vary from true South Australian time.
I emphasise that although I here set out my findings in chronological order, the above findings are made on the basis of all of the evidence and not just by reference to the evidence directly relating to any one particular event.
Bridgland’s act of punching the deceased
On the basis of the whole of the evidence I find beyond reasonable doubt that Bridgland’s act of punching was a voluntary and deliberate act and that it was not accidental. I find beyond reasonable doubt that the act was a dangerous act and that it 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.
I accordingly find that all elements of the crime of manslaughter have been proven beyond reasonable doubt subject to the outstanding question of whether the act may not have been unlawful due to the act occurring in the course of self defence or the lawful defence of another person.
7. DID BRIDGLAND ACT IN SELF DEFENCE OR DEFENCE OF ANOTHER?
As to whether Bridgland may have been acting in the defence of himself or of another person,[104] one must consider the course of events in the eastern car park leading up to the fatal blow.
[104] The term “self defence” is frequently used to encompass both defence of oneself and defence of another person. However in the present case, for reasons that will become apparent, it is necessary to consider those defences separately.
The course of events in the Old Bushman Hotel eastern car park
In discussing the relevant evidence, including the recorded visual material in exhibit P6, I will refer to the persons “Bridgland”, “Winter” and “the deceased” directly in those terms. However, I will refer to a further male simply as “X”; this is the person appearing in the recorded visual material in exhibit P6 who the prosecution allege is ATS. That proposition is vigorously disputed by counsel for ATS and I will deal with the prosecution case that “X” was the accused ATS separately below.
The period of time from the beginning of the relevant material in exhibit P6 at 3:00:20am to the deceased falling to the ground at 3:00:52am is quite short, just over 30 seconds. Despite that shortness of duration, it involves the depiction of conduct by a not insubstantial number of individuals. I intend to restrict myself to the observations necessary to decide the issues arising in this case.
The assaults on Brad Chenoweth and Jake Commins
Commins gave evidence that he attended the Hotel on the subject occasion with his friends Bradley Chenoweth, Toby Maple and Tyson De Marchi.[105] Over the course of the evening, he remained with his friends, not getting into any arguments and not observing his friends to do so. He considered that by closing time, at around 3:00am, he was “pretty drunk” but that he could still stand, walk and converse.[106]
[105] T172.
[106] T174-175.
Commins intended to return with Chenoweth to Chenoweth’s house on foot to stay the night. On leaving the Hotel at closing time, Commins exited through the Cowan Street door, turned right and walked to the cream wall which divides the eastern car park from the footpath on Cowan Street. He began to say goodbye to people[107] and estimated that there were between 40 and 50 people in the vicinity. He struck up a conversation with a Dutchman standing there as his father is Dutch and he recognised the accent.[108] He said they just had “drunk talk”.[109]
[107] T178-180.
[108] T180
[109] T181.
Commins then noticed a group of his friends over in the Coles car park.[110] He walked over there and spoke to a member of that group. He had initially assumed that Brad Chenoweth had followed him but he later heard someone yell out words to the effect “Brad’s been hit”.[111] He quickly headed back in the direction from which he had come and, when he reached the top of the rise of the Coles car park entry, opposite the Hotel, he saw Chenoweth lying on the Hotel eastern car park almost immediately outside the Cowan Street entrance to the Hotel.[112] Commins quickly went to that position and found Chenoweth “knocked out cold on the floor”. Commins then yelled out generally to those in the vicinity “Who the fuck did this?”.[113]
[110] T181.
[111] T182.
[112] T183.
[113] T183.
Commins gave evidence that a male then came at him, throwing punches. Commins described that assailant as Caucasian or white and wearing dark clothes.[114] This assailant is the person alleged by the prosecution to be ATS and to be referred to as “X”.
[114] T188-189.
Commins said that he did not respond to this attack because he was concerned by the presence of another male with facial hair and wearing a cap standing behind “X”; he thought that if he struck out against his assailant the second male would enter the fight.[115] Several punches connected with Commins’ head and he next remembers going down to the ground.[116] He put his arms up in front of his face and felt a kick to his arms.[117] This series of assaults on Commins occurs from the entry of “X” into view at 3:00:20 am to “X” kneeing or kicking Commins in the face area at 3:00:29am (a period of about nine seconds) and is clearly depicted in exhibit P6.
[115] T185-186.
[116] T184.
[117] T185, 199.
The intervention of the deceased and subsequent events
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.

Further, there are various portions of the recorded visual material taken inside the Hotel which appear to depict ATS. For example, the recorded visual material on channel 6 (exhibit P27) taken from a camera overlooking the entrance from Cowan Street, depicts a male who appears to be smoking a cigarette standing alongside Bridgland. While the male’s face is not shown with clarity, his clothing and footwear are consistent with that seized from the Alawoona Road address where ATS was arrested (exhibits P16, P17, P18 and P19). The male in the recorded visual material appears to be wearing a dark top, dark pants and sneakers and there is correspondence between the man’s dark hair, dark pants, dark top, and ATS’s arrest photographs (exhibit P40) and the clothing seized from 94 Alawoona Road (exhibits P16, P17 P18 and P19).
In particular, pausing the recorded visual material in exhibit P27 at the imbedded time of 11:14:32pm reveals the male facing the camera front on with his head turned toward Cowan Street with the left side of his face visible. The recorded visual material shows that the male’s jumper has some form of motif including a light-coloured horizontal bar in the region that might best be said to divide the chest from the stomach and is consistent with the design of exhibit P16. The man’s hair covers part of his forehead and temple area consistent with the arrest photograph of ATS (exhibit P40).
The recorded visual material on channel 15 (exhibit P31) taken by a camera overlooking the bar adjacent to the Beer Garden appears to depict ATS walking through the door opposite to the entrance to the Beer Garden in order to enter the room where the ATM is situated. He enters that room from the Beer Garden by at least 2:33:33am, walks past the bar, and, by 2:36:42am, has left that room.
The recorded visual material on channel 6 (exhibit P32) taken by a camera overlooking the ATM appears to show ATS at the imbedded time of 2:39:16am, and from 2:39:19am to 2:39:20am he faces that camera directly. By 2:39:38am that person has left that room through a door that connects to the front bar which would allow an exit through the same door through which he had first entered the Hotel from Cowan Street. These images show quite well that his clothing matches the items seized upon the arrest of ATS. The “HURLEY” motif on his jumper is clearly depicted, as is the horizontal bar, and matches exhibit P16. Although less visible, his shoes are also consistent with the shoes seized on ATS’s arrest (exhibits P18 and P19).
Importantly, the person’s face in this recorded visual material is plainly recognisable as that of ATS in his arrest photographs (exhibit P40). This recorded visual material also shows that the person was then in the company of Bridgland.
The recorded visual material on channel 3 (exhibit P33) appears to depict ATS leaving the Hotel at 2.39.43am on 1 September 2013. He left very shortly after Bridgland, with one person leaving between them as they walked out.
Finally, Justin Webster-Bonser gave evidence that he had known an “Alby Taylor” for up to two and a half years before the subject occasion, during which time they had been introduced and they had seen each other twice at pubs and parties; their last meeting was around 12 months before the subject occasion, and their first meeting about 18 months before the subject occasion.[126] Webster-Bonser gave evidence that he saw “Alby Taylor” inside the Hotel on the subject occasion and further stated that after he left the Hotel through the door that opens onto Cowan Street, “Alby Taylor” approached him to ask for, and was later given, a ride home with Brenton McEwan-Stephens, a friend of Webster-Bonser.[127]
[126] T212-213.
[127] T221, 233.
Webster-Bonser also gave evidence that after the incident at the Hotel he ran to Pioneer Park and that, when he arrived, “Alby Taylor” and another person who he believed to be Jason Bridgland were also there.[128] The contact in Pioneer Park between the police officers (Twiggs and Oberholzer) and Wesbter-Bonser, “Alby Taylor” and Bridgland is considered elsewhere but the effect of the police evidence is that the man in Pioneer Park referred to by Justin Webster-Bonser as “Alby Taylor” was later positively identified by the police as ATS.
[128] T232.
Finally, after Twiggs and Oberholzer had left the park, Wesbter-Bonser, “Alby Taylor” and Jason Bridgland were driven home by McEwan-Stephens and Webster-Bonser saw “Alby Taylor” and Bridgland leave the car together somewhere in Smithfield.[129]
[129] T235.
On the basis of all of the above evidence, I find it proven beyond reasonable doubt that ATS was inside the Hotel prior to the incident in the eastern car park.
Was ATS one of the persons seen by police in Pioneer Park shortly after the incident in the Old Bushman Hotel eastern car park?
The interaction in Pioneer Park between the police officers (Twiggs and Oberholzer) and Wesbter-Bonser, “Alby Taylor” and Bridgland has been considered in detail above, as has Constable Twiggs’ later identification of ATS when he attended at 94 Alawoona Road later that morning looking for the male person who had claimed to be MROS in Pioneer Park. Twiggs immediately recognised the youth who came to the door as the person he saw in Pioneer Park who gave the name MROS, and he did so notwithstanding the mother’s (correct) assertion that her son MROS was not home.[130]
[130] T368-369.
I take into account the submission put by counsel for ATS that if Twiggs was mistaken on the occasion in Pioneer Park (in comparing the youth before him to the photograph on the proof of age card of MROS) then he might have been mistaken in his identification at the Alawoona Road address.
However, I reject that submission. The appearance of ATS bears a reasonable resemblance to the person depicted in the photograph appearing on the proof of age card bearing the name MROS. The two persons were born only about one and a half years apart[131] and on the evidence they are at least half brothers, having the same mother. Further, the act of comparing the person in Pioneer Park to that photograph entailed the making of allowances for the substantial changes of appearance that may often occur from the date of a photograph being taken until the later date of viewing it, including differing appearances of hair, facial hair, expression, clothing and lighting. A police officer may be disposed to accept a fairly wide degree of such difference having regard to his previous experience in such matters. This may be particularly so in the circumstances here, where he had no reason to suspect that these individuals had had anything to do with a fight and was anxious to attend at the Hotel to gain further information.
[131] According to the arrest photo, ATS was born on 5 June 1995. According to the proof of age card, MROS was born on 20 November 1993. That is, including the end date, one year six months and 16 days.
The situation later at the Alawoona Road address was very different. Here, Twiggs was comparing a person (ATS) with his memory of the person he had seen in Pioneer Park, who had professed to be MROS but he immediately made a correct identification.
There is also the evidence of Webster-Bonser that he knew the person who produced the proof of age card in Pioneer Park as “Alby Taylor”; that this person had been inside the Hotel earlier that evening/morning; and that this person later approached him to ask for, and was given, a ride home with McEwan-Stephens.[132] Webster-Bonser saw “Alby Taylor” and Bridgland leave the car together somewhere in Smithfield.[133]
[132] T22, 233.
[133] T235.
Of course, combining the evidence of Justin Webster-Bonser and Twiggs, one has Webster-Bonser asserting that “Alby Taylor” was a person who had earlier been inside the Hotel and also was spoken to by Twiggs in Pioneer Park. Twiggs in turn proves that the person to whom he spoke in Pioneer Park was in fact the person he identified as the accused ATS at 94 Alawoona Road later that morning.
On the basis of all of the above evidence, I find it proven beyond reasonable doubt that ATS was in Pioneer Park shortly after the incident in the Hotel eastern car park.
Was ATS in the Old Bushman Hotel eastern car park leading up to the fatal blow?
It is at the point of proving that ATS was in the Hotel eastern car park at the time leading up to the fatal blow that insuperable difficulties arise for the prosecution.
There is simply no concrete evidence of ATS’s whereabouts from the time he is seen on the recorded visual material leaving the Hotel at 2:40am on 1 September 2012 until he is found in Pioneer Park by Twiggs a short time after the eastern car park incident. More specifically, there is no evidence of either his whereabouts between 2:40am to 3:00am (the period between him leaving the Hotel and the commencement of the incident in the eastern car park) or his presence in the eastern car park during the incident.
It is not for ATS to prove where he was or how he came to be found in Pioneer Park. Various possibilities such as seeing the Hotel eastern car park incident from a location such as the Coles car park and then running with others to Pioneer Park are suggested but do not have to be proven by ATS.
Unlike the position in Bridgland’s case (where a witness positively stated that he saw Bridgland in the eastern car park delivering the fatal blow and recorded visual material (exhibit P6) also provides strong evidence of Bridgland’s presence), in ATS’s case there is simply no witness evidence of his presence in the eastern car park at the critical time.
The recorded visual material in relation to the Old Bushman Hotel car park (exhibit P6)
I also consider that the recorded visual material falls substantially short of proving that ATS was present in the eastern car park.
At the imbedded time of 3:00:21am on exhibit P6, a person who appears to be a thin male enters from a portion of the eastern car park closer to Cowan Street but which is outside the field of vision of the camera itself. It appears that he is wearing a dark hooded top, dark pants, and dark shoes. This is the man the prosecution allege is ATS and is referred to as “X”.
“X” is then seen assaulting the man Commins and later he is seen performing the various activities described above in connection with the examination of the case against Bridgland and which will not be here repeated.
At the imbedded time of 3:00:25am, the face of “X” face is angled toward the camera. While it may be said that it is not obviously inconsistent with that male being ATS, nor can it be said that it matches the arrest photograph of ATS (exhibit P40) in any positive sense.
Can one match the clothing seized from ATS to the recorded visual material?
The prosecution tendered clothing and footwear seized from the address at which ATS was arrested. Exhibit P16 is a dark coloured jumper with a hood. Exhibits P17 and P18 comprise a pair of dark coloured “Nike” shoes of a casual sneaker style with laces that at the date of the trial appear to be bright yellow in colour.
The shoelaces
At various times throughout the recorded visual material, the top of “X’s” shoes appear to give off some form of light yellow-green colour. At other times these “flashes” appear a more neutral hue, a paler tone, possibly white. At the imbedded time of 3:00:34am, “X” kicks Commons whilst he is on the ground and it appears that his shoes may have light or pale laces. Pausing the recorded visual material at 3:00:23am, 3:00:38am and 3:00:36am provides other possible examples.
Twiggs’ evidence was that ATS was wearing dark shoes with fluoro green laces in Pioneer Park. However, the prosecution has simply called no evidence concerning whether the laces in ATS’s shoes would give off any colour or luminescence at night. More importantly, there is no evidence as to how common such shoe laces may be. It is little more than speculation to say that the flashes observed in the vicinity of the shoes of “X” may indicate that those shoes may have been those being worn by ATS at the time of the eastern car park incident.
The pants and jumper seized from ATS
At the imbedded time of 3:00:23am, Commins and “X” are in around the centre of the eastern car park where the lighting is better than in other areas. “X” is here shown to be side on to the camera. His jumper is a darker colour than his pants, which appear to be dark blue. It is not clear whether the jumper is darker blue or a dark shade of grey or black. At other times it also appears that the front of “X’s” jumper is not of uniform colour in the sense that it bears some form of motif. This is clearly evident as he faces the camera whilst walking out of the eastern car park from 3:01:01am to 3:01:05am after the fatal blow.
However, the most that can be said about the above evidence is that the person “X” may have been ATS. The clothing seen was generic in nature, and others in the eastern car park were wearing not dissimilar items; as would have been thousands of other young persons at various venues throughout the country. The recorded visual material is insufficiently clear to prove that the clothing worn by “X” was the same as that seized from ATS and there is nothing else depicted in the material that would permit a finding beyond reasonable doubt that “X” is ATS.
On the basis of this evidence, I cannot be satisfied beyond reasonable doubt that ATS was in the eastern car park at the time that the fatal blow was struck to the deceased. I am not satisfied beyond reasonable doubt on the evidence that is “ATS”.
If it had been proven that “X” was ATS, could it have been established that ATS was a party to the joint criminal enterprise?
In my view, even if it had been proven that the person “X” was ATS, it could not have been established that ATS was a party to a joint criminal enterprise to assault the deceased in such a way as to expose him to an appreciable risk of serious injury.
The present is a case very different to cases such Huynh v The Queen[134] where a group of people assemble at particular premises pursuant to an agreement between them to carry out acts of violence at those premises. Here, there can be no suggestion that there was any plan to attend the Hotel for any purpose other than socialising and drinking. Further, the relevant events in the eastern car park after closing time occur in a period of about 30 seconds and the recorded visual material (exhibit P6) in no way indicates that a plan was being implemented.
[134] (2013) 87 ALJR 454.
Rather, exhibit P6 shows that the assaultive behaviour of the person “X” towards a number of different persons in the car park created a snow balling effect which tragically leads to other persons reacting to unexpected events, and eventually culminates in Bridgland administering the fatal blow to the deceased.
As stated in Halsbury’s Laws of Australia, “there must be an agreement [between the co-accused] to commit the offence – it is insufficient that alleged co-offenders decide individually to commit the same offence”.[135]
[135] LexisNexis, Halsbury’s Laws of Australia, (as at 1 November 2010) ‘2 Complicity’ [130-7265]. See also: R v Petters and Parfitt [1995] Crim LR 501; R v Walton and Harman [2001] QCA 309; Taufahema v The Queen (2006) 162 A Crim R 152, 162 [28], 163 [30] (Adams J; Beazley JA and Howie J agreeing); R vTaufahema (2007) 228 CLR 232.
Thus, the fact that the man “X” is seen on several occasions to dart in and punch the deceased (or attempt to do so) by no means establishes that those acts were performed pursuant to, or by reference to, an agreement with anyone else. Similarly, the fact that Bridgland eventually approaches and punches the deceased does not establish that there was any agreement between Bridgland and any other person to assault the deceased, express or tacit.
Accordingly, ATS must be acquitted on the basis of insufficient evidence to prove either his presence in the eastern car park or that he was a member of a joint criminal enterprise to assault the deceased in such a way as to expose him to an appreciable risk of serious injury.
9. REASONS FOR THE ACQUITTAL OF WINTER ON 10 DECEMBER 2013
At the conclusion of the trial on 10 December 2013, I found Winter not guilty (and reserved my decisions in relation to both Bridgland and ATS). My brief reasons for finding Winter not guilty are as follows.
At trial, I considered that Winter had become caught up on this occasion in a series of events for which he was not responsible and for which he was not to be blamed. It was clear to me that he had not been guilty of any criminal offending and I note from the evidence tendered before me on his behalf that in fact he has no record of any criminal offending at all (exhibit DW2).
I find that Winter had gone to the Hotel for purely social reasons; there is no trace of any aggressive behaviour by him appearing in the extensive CCTV recorded visual material taken inside the Hotel. Later in the eastern car park, he did not initiate any trouble. However, he appears to have attempted to intercede in what he would have perceived as a confrontation between a very large man (the deceased) and a very much smaller male (the person referred to as “X”). Winter was probably not fully aware of why that confrontation was occurring and what the deceased had seen “X” do shortly before that. As described more fully in my main reasons above, Winter’s intervention appears to have led to the deceased pushing Winter back some distance to the vicinity of the blue utility in the eastern car park of the Hotel, at which point Winter fell to the ground; if Winter pushed back during this time at all, he pushed less and with much less force than he was pushed.
As Winter was getting back on his feet, Bridgland (independently of Winter) approached the deceased, took hold of him and punched him, causing the deceased to drop to the ground.
I find that Winter had nothing to do with that punch inflicted by Bridgland on the deceased; that he was not a party to any plan to assault the deceased; and that he was in no way responsible for the death of the deceased.
It was for these reasons that I acquitted Winter.
10. FORMAL VERDICTS
I find Jason Graham Bridgland guilty of the crime of manslaughter.
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 positions
1.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 images
3.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 report
19.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 Photographs
21.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 ATS
22.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.     Deceased
25.1. 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.     Bridgland
26.1. 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.