R v Edwards - [2009] SASC 233

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v EDWARDS
[2009] SASC 233
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice Vanstone)
13 August 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF GENERAL CONDUCT OF TRIAL
Appeal against conviction and sentence - defendant found guilty of manslaughter by both unlawful and dangerous act and criminal negligence - whether the Judge erred in approach to evidence of good character - whether Judge erred in respect to assessing onus of proof - whether Judge failed to correctly approach the evidence of the defendant - whether Judge erred in failing to consider effects of concussion - whether Judge erred in approach to defences provided by sections 15 and 15A of the Criminal Law Consolidation Act 1935 - whether Judge erred in approach to 'proportionality' - whether Judge wrongly rejected propensity evidence.
Held (Doyle CJ & Vanstone J): appeal allowed - conviction and sentence set aside - retrial ordered - appreciable risk of miscarriage of justice - finding that defendant's actions unlawful cannot stand - Judge failed to give appropriate consideration to the circumstances as the defendant genuinely believed them to exist and as they were in fact - application of sections 15 and 15A flawed - finding of manslaughter by criminal negligence cannot stand - section 15 and 15A capable of providing defence to this charge - no error in fact finding process demonstrated - no error in relation to evidence of good character demonstrated - risk of miscarriage of justice arises as the issue of time of death unresolved at trial - no error with respect to rejection of propensity evidence demonstrated.
(Gray J): appeal allowed - conviction and sentence set aside - appropriate to enter verdict of acquittal - on Judge's findings, prosecution had not excluded a reasonable possibility consistent with innocence - fact finding process flawed - Judge failed to correctly address good character evidence - Judge erred in consideration of section 15 and 15A defences - no error in approach to onus of proof demonstrated.
Criminal Law Consolidation Act 1935 (SA) s 13, s 15, s 15A, s 15B and s 353, referred to.
R v Edwards [2007] SASC 202; R v Trimboli (1979) 21 SASR 577; Melbourne v The Queen (1999) 198 CLR 1; Mason v State of Western Australia (2005) 30 WAR 205; Knight v Jones [1981] Qd R 98; Re Knowles [1984] VR 75; Cheney v R (1991) 28 FCR 103, considered.

R v EDWARDS
[2009] SASC 233
Court of Criminal Appeal: Doyle CJ, Gray and Vanstone JJ

DOYLE CJ: The circumstances giving rise to the prosecution of Mr Edwards for manslaughter are summarised by Gray J in his reasons, which I have had the benefit of reading. The reasons of the trial Judge for her guilty verdict are also set out in the reasons of Gray J, as are the issues arising on appeal.
I agree that the appeal against conviction should be allowed, and that the conviction should be set aside.
I agree with aspects of the reasons of Gray J but, with all respect, there are matters on which I differ from him. Accordingly, I will give my own reasons for allowing the appeal, but in the circumstances can do so relatively briefly.
The case at trial
The Judge summarised the respective cases at trial as follows:
[5]The prosecution’s case before me is that in the course of attempting to restrain Esposito as a result of the altercation, Edwards applied a headlock to Esposito and maintained it for an excessive time and that this caused his death. The prosecution alleged that the cause of death was asphyxia due to compression of Esposito’s neck, compromising oxygen supply and blood circulation to the brain. It was conceded by the prosecution that an additional contributor to the death of Esposito may have been pressure placed on the upper back of Esposito by Edwards and others, and possibly vomit in the airway of Esposito. The prosecution contended that neither of these contributory factors changed the fact that Edwards caused Esposito’s death and that this scenario amounted to manslaughter either by an unlawful and dangerous act, or by criminal negligence.
[6]The defence contended that Edwards was not guilty of manslaughter. The defence was multifaceted. In relation to both forms of manslaughter, counsel contended that I could not exclude the possibility that it was a combination of events that caused the death of Esposito, and therefore I could not be satisfied that Edwards’ actions were a substantial cause of death. Further, I could not be satisfied that a reasonable person in the position of Edwards would have appreciated that his acts were dangerous. It was submitted that Edwards had sustained concussion on the night and that the symptoms impaired his appreciation and judgment. Further, it was not known by either him, or a reasonable hypothetical person, that a short application of a small amount of pressure to the jugular veins could result in unconsciousness and death.
[7]If causation could be proven beyond reasonable doubt, defence counsel raised two defences to the charge of manslaughter by an unlawful and dangerous act. Relying on s 15 and s 15A of the Act, counsel contended that the actions of Edwards were not unlawful as he genuinely believed his actions to be necessary and reasonable to either assist in the lawful arrest of Esposito, or alternatively, to defend himself or other persons. With regard to both defensive purposes, the conduct of Edwards was, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat that he believed to exist.
[8]In relation to manslaughter by criminal negligence, counsel contended that Edwards was not negligent because he had not applied more force than was reasonably necessary in the circumstances. In the alternative, if Edwards was found to be in breach of a duty of care, any negligence on his part was not of such a high degree as to warrant a criminal sanction.
The events that led to the charges began when Mr Reid, one of the two men with Mr Esposito, came into contact with Mr Phypers, one of the security staff who was escorting Mr Esposito and his companions from the hotel: [110]. Mr Mills was the other man with Mr Esposito. Mr Esposito, Mr Mills, and the other security staff became involved in the ensuing struggle: [112].
In the first minute Mr Edwards was punched in the face several times, and received a solid punch to the face: [144]. The Judge accepted that Mr Edwards was “slightly dazed and suffered minor concussion”: [144]. However, the Judge also found at [288]:
[288]I do not consider that there is a reasonable possibility that either concussion or shock had such an impact on him that it impaired his ability to act rationally, nor did it impair his judgment during his involvement with Esposito, particularly whilst on the northern wall.
About ten minutes elapsed between the time when the struggle began, and the time when Mr Edwards let go of Mr Esposito and got up from the floor: [25]. The struggle took place in a passageway. There were a number of people involved in the struggle, and the passageway was crowded: [25].
There is no evidence to suggest that Mr Edwards punched or attacked Mr Esposito or his friends. Mr Edwards’ main involvement was in restraining Mr Esposito.
Two police officers (Constable Valassakis and Constable Pearson) arrived about six minutes after the struggle began, and about four minutes before Mr Edwards released Mr Esposito: [252]. The Judge accepted the evidence of the two constables: [258]. Constable Valassakis described the situation as “noisy and chaotic”: [252]. The Judge summarised their evidence as follows:
[253]The attention of Pearson and Valassakis was immediately drawn to Mills, who was closest to the door. It was Pearson’s evidence that Mills was on his hands and knees, facing east, and had blood around his mouth. When Mills attempted to swing a punch, a security officer (Spencer) grabbed hold of him in what Pearson described as a headlock, with Mills’ neck in the crook of Spencer’s elbow, and swung Mills on to his back so that he was facing Pearson.
[254]Valassakis, following behind Pearson, first saw Mills with his neck in the crook of Spencer’s arm, in what she described as a neck hold. She noticed that he was struggling for breath and immediately directed Spencer to let go of his neck. She and Pearson then worked together to handcuff Mills, and Valassakis repeated her direction to Spencer to release the hold. During this process, another security officer asked for a pair of handcuffs and Valassakis handed her set to him.
…

[256]After handcuffing Mills, Pearson then turned to Reid who was lying on the ground slightly further from the door. Pearson’s evidence was that Reid was loud, violent and aggressive. He was screaming at the top of his lungs words to the effect of: “Stop. Get off me. Let me go”, to at least three security officers trying to restrain him. …
…
[259]I accept the evidence of Valassakis and Pearson that both Reid and Mills were struggling with the security officers when they arrived, and that Reid was shouting out to the security officers to release him. I am satisfied beyond reasonable doubt that neither Mills nor Reid were under control after they had been taken to the ground in the south-western and north-western corners. They continued to shout and resist on and off and they were not under control when the police arrived. The police officers were required to assist in the restraint and arrest of both of them. These facts are relevant to the circumstances Edwards was in when he was holding Esposito in a headlock.
Footnotes omitted
There was an issue at trial as to whether, after handcuffing Mr Mills and Mr Reid, Constable Pearson told Mr Edwards to continue to hold Mr Esposito. As to this the Judge said:
[294]I am unable to make a specific finding as to exactly what was said by either the police or Spencer to Edwards. I am satisfied that it was to the effect that he was to continue to hold Esposito until the police could take over.
[295]In addition, I am satisfied beyond reasonable doubt that by the time he was given a direction, Edwards had already maintained a headlock on Esposito for more than five minutes. Further, contrary to Edwards’ evidence, over this short period after the direction was given Esposito did not struggle or resist, or even move. He was by then unconscious if not already dead. I am not satisfied that it is reasonably possible that whatever was transmitted by Spencer to Edwards could reasonably have been interpreted by Edwards as a direction to keep Esposito in the sleeper hold in which he had him. At best, it was directing him that he would have to continue to hold Esposito down as the police could not take over at that moment.
Footnote omitted
I interpolate here a comment which will become relevant later. It is in my opinion material that Mr Edwards was told to continue to restrain Mr Esposito, and was not told to discontinue the hold which he was applying.
As I have said, the Judge’s reasons are summarised by Gray J. The following part of her reasons warrants highlighting:
[396]As to the circumstances of Edwards as known by him on the night which, in turn, are assumed to be the circumstances of the reasonable hypothetical person, they are as follows.
[397]The circumstances known by Edwards were that an altercation had broken out involving the three patrons and security officers in the manner I have found. Edwards became involved in the altercation and received punches to the face, including a significant punch to his right eye. Edwards first became involved with Esposito on the southern wall and briefly placed him in a headlock close to a sleeper hold, slipping into a choker hold, whilst he was bringing Esposito down against the southern wall. With the assistance of other security officers, Edwards dragged Esposito to the northern wall. After initially applying an arm bar hold, he applied a choker hold and sleeper hold for a period of five and a half minutes.
[398]During the time Edwards had Esposito in the different headlocks on the northern wall the foyer was noisy. Reid was very close by and was shouting, moving and being controlled by other security officers. Further to the west Mills was also shouting and was being controlled by other security officers. It was a chaotic environment. At the same time, Edwards was assisted in the holding of Esposito by, mostly, three other persons. During the period of five and a half minutes Esposito offered very little, and eventually no, resistance. Spencer communicated with Edwards on three occasions.
[399]The question that arises is whether a reasonable person in the circumstances of Edwards as above described would have realised that his action in maintaining headlocks over a period of five and a half minutes would have exposed Esposito to an appreciable risk of serious injury.
[400]Counsel for Edwards argued both in the context of manslaughter by unlawful and dangerous act, as well as manslaughter by criminal negligence, that a reasonable hypothetical person would not have known that only a small amount of pressure was required on certain portions of the neck for a very short period of time before it could produce unconsciousness and death. As indicated above, I accept that proposition. However, in this case I am not dealing with a few seconds, or even three minutes. It is not just a sleeper hold which was applied by Edwards, but a combination of holds over five and a half minutes. In my opinion, a reasonable hypothetical person in the circumstances of Edwards would appreciate that holding a person by applying pressure around the neck area for over five and a half minutes would be exposing that person to an appreciable risk of serious injury. This, in my view, is generally known, even if the precise physiological mechanism is not understood. It is, as Pix indicated, commonsense. Further, by reason of his training as previously described, Edwards had a better appreciation than many that pressure on the neck could compromise oxygen supply. There is also the exacerbating factor of upper body pressure applied by Edwards on Esposito who was lying on the ground. A reasonable hypothetical person in the circumstances of Edwards would also know that the application of upper body pressure can also affect a person’s ability to breathe. I am therefore satisfied that the second element of this offence has been proved beyond reasonable doubt by reason of the headlocks applied by Edwards, quite apart from the additional factor of upper body pressure.
[401]Turning now to the third element, namely, whether the prosecution has proved beyond reasonable doubt that the conduct of Edwards was unlawful. As indicated earlier, there are two aspects to consider. First, whether the prosecution is able to exclude that Edwards performed the actions whilst assisting the lawful arrest of Esposito. Second, whether the prosecution is able to exclude that the acts were performed by Edwards for the purpose of either his own defence or the defence of others and that those actions were reasonably proportionate.
Footnotes omitted
The Judge then turned to a consideration of s 15 and s 15A of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”).
A central part of the Judge’s reasons is to be found in the following part of her reasons:
[403]This section identifies the statutory elements of the defence which are to be applied. I have previously expressed concern about what conduct Esposito was being arrested for, as there was no specific evidence as to what Esposito did at the commencement of the altercation. In relation to the defence of assisting in lawful arrest, however, what is relevant is the circumstances which Edwards genuinely believed to exist. Although I have rejected the accuracy of Edwards’ account of how the altercation first broke out, I accept that Edwards genuinely believed that all three patrons, including Esposito, hit out at security officers. Further, even if that were not so, I am satisfied that Edwards genuinely believed that later Esposito was forcefully struggling with Phypers and Pix and then with Courtney on the southern wall. I am therefore satisfied that, in the circumstances which Edwards genuinely believed to exist, it was both necessary and reasonable for him to take firm action to control Esposito pending arrival and arrest by police.
[404]A further consideration is whether the acts of Edwards, in holding Esposito, were reasonably proportionate to the circumstances which Edwards believed to exist. This aspect requires the prosecution to prove beyond reasonable doubt that the actions of Edwards were not reasonably proportionate. Whether his actions were reasonably proportionate is to be viewed objectively, albeit in the circumstances which Edwards genuinely believed to exist.
[405]I am satisfied beyond reasonable doubt that Edwards genuinely believed that some force was required by him to bring Esposito to the ground and under control. I am satisfied that his actions in briefly applying a choker hold and sleeper hold on the southern wall were reasonably proportionate. However, a different situation arises in relation to Edwards’ actions near the northern wall.
[406]After Esposito was dragged across to the northern wall and after he was initially controlled by Edwards in an arm bar hold, he was then held by Edwards for five and a half minutes in either a choker hold or sleeper hold. The headlocks were applied by Edwards in a situation where generally three other persons were also holding Esposito down. While a certain period of time could have been regarded as reasonably proportionate in order to ensure control, the maintenance of the headlocks over that period of time was not reasonably proportionate for the purposes of controlling Esposito. Edwards had a knowledge of other holds, particularly an arm bar hold, and other persons were assisting. There was, in my view, no warrant for continuing with the headlocks over that period of time, particularly over the third and fourth positions when Esposito was not resisting.
[407]I am therefore satisfied that the prosecution has excluded the defence proffered by Edwards that his actions were for the purpose of assisting with the lawful arrest of Esposito. His action in holding down Esposito for that period of time, coupled with the added pressure that he was placing on Esposito’s back, was not proportionate to the action that the circumstances warranted. I am therefore satisfied that the prosecution has proved beyond reasonable doubt that the actions of Edwards on the northern wall were in all of the circumstances unlawful.
Footnotes omitted
This passage relates to s 15A of the CLCA. The Judge took a similar approach in relation to s 15 of the CLCA: [409]-[413].
It can be seen that the conviction rests on a finding that Mr Edwards applied a headlock to Mr Esposito for an excessive period of time, although it was excessive only because he applied the headlock for as long as he did. The use of a headlock to restrain Mr Esposito was, in itself, “reasonably proportionate”, until about the last three minutes of restraint by the northern wall of the passageway. The total period for which the headlock was applied while adjacent to the northern wall was about five and a half minutes: [251] and [406].

I make the following comment. The struggle took place in a confined and crowded space, over about ten minutes. It was, as the Judge and the police constables said, a chaotic situation in a crowded area, with background noise and noise from the people struggling and fighting. Mr Edwards’ main role was to restrain Mr Esposito, while other persons restrained Mr Mills and Mr Reid: [410]. On the Judge’s findings there was a need to restrain Mr Esposito, and Mr Edwards’ response was “reasonably proportionate”, but for the circumstance that he maintained a headlock for too long, or for longer than was necessary. It was not that he restrained Mr Esposito for too long, but that he maintained a particular hold for too long.
Section 15 and section 15A
The provisions are set out in the reasons of Gray J.
The Judge accepted that it was necessary and reasonable for Mr Edwards to “… take firm action to control Esposito pending arrival and arrest by police”: [403]. The Judge accepted that it was “necessary and reasonable” for Mr Edwards to apply a headlock while restraining Mr Esposito adjacent to the northern wall “for a short period of time”: [410].
I am not persuaded that the Judge erred in law in her approach to s 15(1)(b) and s 15A(1)(c) of the CLCA. As to s 15A, I have set out above [403] and [404] of the Judge’s reasons. As to s 15 the Judge said at [409]:
In relation to the circumstances which Edwards genuinely believed to exist, I refer to my previous discussion. …
A footnote refers to [403].
Considering the relevant part of the Judge’s reasons as a whole, I am satisfied that the Judge understood that she should consider the question of reasonable proportionality in light of the circumstances as Mr Edwards genuinely believed them to exist. Considered in isolation the Judge’s reasons at [405]-[407] might suggest that the Judge applied a purely objective test, but this part of the Judge’s reasons is preceded by a correct direction by the Judge to herself in [403]-[404]. It was not necessary for the Judge to keep repeating the whole of the statutory formula.
But although the Judge has correctly directed herself as a matter of law, her reasons indicate to me, with all respect to the Judge, that she failed to give full effect to that direction when considering the facts of the case. In particular, that she failed to give appropriate consideration to the circumstances as Mr Edwards genuinely believed them to exist, and, I would add, to the circumstances as they were in fact.
The Judge accepted that restraining Mr Esposito until the police arrived was, both objectively and in the circumstances as Mr Edwards believed them to exist, a proportionate response to the situation.
As I noted above, even when the police arrived, at a stage when the security staff were probably getting the upper hand, the situation was “chaotic”.
The situation during the struggle, and even after the police arrived, was not one in which there was scope for Mr Edwards to make a careful assessment of the situation. Mr Edwards had been punched in the face, and the Judge accepted that he suffered “minor concussion and shock”: [395]. While the Judge did not accept that Mr Edwards’ ability “to act rationally” was impaired, or that his judgment was impaired, it seems to me that if he was concussed and shocked, that had to be given some weight when considering the application of the statutory provisions.
The Judge accepted that quite late in the piece Mr Edwards was told to keep holding Mr Esposito until the police (who were already there) could take over. In all the circumstances, there must have been scope for some misunderstanding on Mr Edwards’ part as to the meaning of that direction. Although it was not a direction to maintain the headlock (as the Judge found), it was a direction to continue holding Mr Esposito, and was certainly not a direction not to restrain him in the manner in which he was restraining him. And the evidence supports the conclusion that Mr Edwards had become aware of the presence of the police before this.
It is also relevant that it was not the duration of the restraint of Mr Esposito that was excessive, but the duration of the particular hold used to restrain him.
Once the police arrived and began to deal with the other two men, Mr Edwards could have expected them to get to him in a few minutes, as they did.
In my respectful opinion the Judge’s findings do not give appropriate weight to these aspects of the circumstances as they were, and as Mr Edwards genuinely believed them to be. It was a confusing and chaotic situation, although perhaps beginning to settle down. There was a need to restrain Mr Esposito. The police had arrived and were working their way towards Mr Edwards.
I acknowledge that the trial Judge was better placed than I am to make relevant findings of fact. But it appears to me, after careful consideration of the relevant part of the Judge’s reasons, that although the trial Judge correctly stated the law, her reasons do not disclose that she gave due weight to what I consider to be central aspects of the facts. Her reasons suggest to me that she did not give due weight, or the required consideration, to the circumstances as they were and as Mr Edwards believed them to be.
The Judge found that, in the midst of all that was happening and against the background of what had happened, Mr Edwards should have realised after a while that he should release the hold that he was applying. This transition makes it all the more important that it be clear from the Judge’s reasons that she correctly applied the law to the facts. For reasons that I have given, that is not clear.
There is therefore an appreciable risk of a miscarriage of justice in this vital respect. For that reason, the verdict of guilty cannot be sustained on the basis that the Judge correctly found that neither s 15 nor s 15A provided a defence to the charge.
Criminal negligence
At trial it appears to have been common ground that neither s 15 of the CLCA nor s 15A could provide a defence to a charge of manslaughter by criminal negligence. Accordingly, the Judge did not consider the application of these provisions in this context. In any event, on the Judge’s approach a defence based on these provisions would have failed.
I agree with Gray J that s 15 and s 15A are each capable of providing a defence to a charge of manslaughter by criminal negligence. On the facts of this case the defence is raised. As a matter of law it requires consideration.
The sections referred to must be considered because each of them provides that it is a defence to a charge of an offence if the statutory requirements are met. There is no warrant, to my mind, for excluding an offence from the reach of s 15 or s 15A because the gist of the offence is an act of gross negligence, assessed objectively, which shows such disregard for the life and safety of others as to amount to a crime, or an act which is such a great falling short of the standard of care that a reasonable man would have exercised, and involving such a high risk of death or grievous bodily harm, that the doing of the act warrants criminal punishment.
I do not accept the submission by Mr Hinton QC SG, counsel for the Director, that self defence can arise only when it amounts to a denial of moral culpability, and that therefore when the gist of the offence is negligence rather than intent, knowledge or recklessness, the defence is not available. It may be, as Mr Hinton submitted, that if there has been a finding that the elements of manslaughter by criminal negligence are established, there will rarely be scope for self defence. But, in my opinion, if manslaughter by criminal negligence is an available route to a conviction in a particular case, there is no reason why self defence cannot arise as a matter of law if it arises as a matter of fact, as it did here.
I have doubts about the appropriateness of the prosecutor presenting the case for decision on this basis. We were told that at the first trial (before a jury) the trial Judge declined to leave this basis for a conviction to the jury. I can understand why. The charge of manslaughter by unlawful and dangerous act enables the court to assess and decide upon the conduct of the accused, in all its aspects. Under this charge the focus is on proof of a deliberate act, of its dangerous qualities and then (through s 15 and s 15A of the CLCA), matters of explanation offered by Mr Edwards for his conduct.
To then move to consider the same facts in relation to a charge the gist of which is a negligent or careless act, seems to me to be potentially confusing for a jury, unnecessary and inappropriate. On the prosecution approach, it is not easy to see when manslaughter by unlawful and dangerous act would not require consideration of manslaughter by criminal negligence as an alternative. As far as I am aware it has not been the practice to approach such cases in this way.
It follows from this that the conviction should be set aside. Whatever the basis of the conviction, error has occurred.
Use of security camera film
Gray J has outlined the circumstances relevant to this issue, and has outlined the submissions on appeal. I will not repeat them.
In her capacity as a finder of the facts, the trial Judge was entitled to make use of the images on film recorded by the security cameras at the hotel. They constituted relevant evidentiary material. It is clear from the Judge’s reasons that she was mindful of the limitations of that material.
I am not persuaded that the Judge was not entitled to rely on the material in the manner in which she did, subject to one qualification. As the finder of fact it was open to the Judge to decide what weight she would give to the film. Error in the fact finding process is not demonstrated by satisfying a court of appeal that it would not have given the same amount of weight to the film.
But as Gray J points out, the trial Judge rejected evidence from Mr Edwards and others to the effect that Mr Esposito continued to resist and to struggle throughout the stage of the struggle when he was close to the northern wall of the foyer: [410]. I refer also to [222], [233], [236] and [251]. It is apparent from the Judge’s reasons that she put considerable weight on the film in making a finding that Mr Esposito was not moving in the latter stages of this phase of the events: [248].
I acknowledge the force of the submission by Mr Peek QC, counsel for Mr Edwards on appeal, that the film did not provide a reliable basis for a finding that excluded the possibility of small amounts of movement, or of attempted movement, by Mr Esposito at the time in question. Of particular significance is the fact that the camera was filming the events from an elevated position, and at an angle to the participants. In such circumstances there must be a real question about the ability of the film to support a conclusion that Mr Esposito was not moving at the relevant time.
However, I am not persuaded that in making the relevant findings the Judge erred. Her finding rests on a very thorough analysis of the evidence, and takes into account her findings as to the evidence of participants in the struggle. The finding of an absence of movement does not rest entirely on what the Judge saw on the film.
I would reject this ground of appeal.
Character evidence
I refer again to the reasons of Gray J on this topic.
In my opinion it was open to the Judge to reason as she did that the character evidence was “… of limited relevance as the events of this night were not a typical part of ordinary or work life”: [287]. This is no more than a conclusion that character evidence was of limited relevance to conduct in particular and stressful circumstances. The question is not whether I agree or disagree with the Judge’s approach, but whether the Judge’s approach is erroneous. I am not persuaded that it is.
However, I agree that Mr Edwards’ good character was relevant to an assessment of his evidence about his concussion, and to the credibility of the evidence that he gave about his part in the struggle, and about Mr Esposito’s continued struggling. In other words, while the character evidence may have had little relevance to the likelihood of Mr Edwards committing the offence, it had relevance to the credibility of the evidence that he gave, and to out of court statements that he had made. There is no reference in the Judge’s reasons to the relevance of good character to these matters.
It may be that the Judge has erred in this respect. But on the other hand the Judge has considered the relevant issues with great care, and in considerable detail. Having regard to her approach, I am not persuaded that any error in relation to the weight to be given to the credibility of Mr Edwards would have affected the outcome. However, it is not necessary to decide this issue because I have already decided that the conviction should in any event be set aside.
Time of death
I refer to the analysis of this issue by Gray J.
As I understand things, the defence case at trial did not focus on the possibility that Mr Esposito died in the early part of the five and a half minutes during which Mr Edwards held him in a headlock. At least in the early stages of the headlock adjacent to the northern wall, the Judge accepted that Mr Edwards’ conduct was “reasonably proportionate”.
The issue which Gray J identifies emerged as a significant issue only on the hearing of the appeal. It became significant as a consequence of the trial Judge’s finding that the application of the headlock for some time while Mr Edwards and Mr Esposito were adjacent to the northern wall was “reasonably proportionate”.
As I understand it the issue was not explored in detail at trial with the relevant experts.
In the circumstances, it is not surprising that the Judge failed to decide the issue identified by Gray J. To my mind, it is not appropriate for this Court now to decide, on the trial evidence, whether the prosecution had excluded the possibility that death occurred before the restraint became unlawful. There is evidence capable of supporting that conclusion, in particular, the evidence from Mr Edwards and others, that Mr Esposito continued to struggle. But, on the evidence as it stands, there is a risk of a miscarriage of justice, because the issue has not been resolved by the trial Judge. That is another reason for setting aside the verdict and ordering a re-trial.
Propensity evidence
It suffices to say that I agree with the trial Judge’s decision to exclude this evidence. It had no relevant probative value. It could not have affected the outcome of the trial in any event.
Retrial
I would order a retrial. The charge is a serious one. The evidence is capable of supporting a finding of guilt. It is not appropriate for this Court to enter an acquittal.
I acknowledge that an order for a retrial is not made as of course. There are considerations that could support a decision not to order a retrial. Unfortunately, at the time of the retrial, the events are likely to be about four years old. That is regrettable, because it is likely to lead to some deterioration in the memory of witnesses. Mr Edwards has been through two substantial trials. The first trial miscarried because of an error by the prosecuting authorities relating to the time shown on the security film. Mr Edwards has served about ten months imprisonment. He has had substantial periods on bail with weekly reporting conditions.
On the other hand, the Court must consider the public interest in the charge being disposed of, and the interests of the family of Mr Esposito.
I am not persuaded that the Court should decline to order a retrial.
It is appropriate to make this further point.
An order for a retrial leaves open to the Director of Public Prosecutions the exercise of the power that he exercises in all cases, namely, to decide whether it is in the public interest that there should be a further trial. In a case like this, that is always a difficult decision. The Director can consider any matter relevant to the public interest, and in particular representations made to him. The Court should intervene by refusing to order a retrial only in clear cases, and in my opinion this is not one. That is why it is appropriate to leave the decision to the Director in the exercise of his discretion. But it is important to understand that the Court’s order does not require that there be a retrial.
Orders
I would grant permission to amend the Notice of Appeal to add proposed grounds 6 and 7. They respectively challenge the verdict in so far as it rests on a finding of criminal negligence, and on the basis of the evidence as to time of death.
I would order that the appeal against conviction be allowed, that the conviction be set aside, and that a retrial be ordered.
With the setting aside of the conviction, the sentence necessarily falls. There is no need for the Court to consider the appeal against sentence. It is convenient for the sake of certainty to order that the sentence be set aside also.

GRAY J:
This is an appeal against conviction and sentence.
Paul John Edwards, the defendant and appellant, was charged on Information with manslaughter contrary to section 13 of the Criminal Law Consolidation Act 1935 (SA). The particulars provided that the defendant unlawfully killed Domenic Jason Esposito on 27 February 2005 at Henley Beach.
The Trial
The trial leading to the verdict and sentence under appeal was the second trial on the same Information. On 8 December 2006 following an earlier jury trial, the defendant was convicted of manslaughter by majority verdict. That verdict was set aside by the Court of Criminal Appeal on 8 June 2007.[1]
[1] R v Edwards [2007] SASC 202.
The defendant elected to be re-tried by judge alone. On 6 November 2008 the learned Judge convicted the defendant of manslaughter.[2] The defendant was sentenced to a term of imprisonment of two years, eight months and two weeks. A non-parole period was fixed at the mandatory minimum of two years and two months.[3]
[2] R v Edwards [2008] SASC 303.
[3] Sentencing Remarks 20 January 2009.
The General Circumstances
The charge against the defendant arose from the death of Mr Esposito at the Ramsgate Hotel at Henley Beach on 27 February 2005. Mr Esposito was a patron of the hotel. The defendant was employed on a part-time basis as a security officer at the hotel. He also worked full-time with the Fire Department.
On the evening of 27 February 2005, Mr Esposito and an associate, Kane Reid, had been at the Henley Beach Food and Wine Festival from about 5pm. They met another associate, Wade Mills, at about 6pm. The three men consumed alcohol at the festival. At about 8pm they moved to the Ramsgate Hotel and there consumed alcoholic drinks in the gaming room. Mr Mills left for a short period. At about 8:41pm[4] a fight broke out between the three men and hotel security staff. The defendant was one of the security staff involved. The incident occurred in a busy, crowded and noisy hotel. Other patrons were in the foyer and in the vicinity. The events were fast-moving and hectic.
[4] The Judge adopted what she termed “Ramsgate time” being the time shown on the video camera recording. This time is inaccurate and is some minutes different from central standard time. As all of Her Honour’s reasons are based on Ramsgate time, that same timing has been adopted for the purposes of these reasons.
The evidence established that at or about the time of the fight, Mr Esposito had a blood alcohol level of 0.107, Mr Reid a level of 0.113 and Mr Mills a level of 0.09. The evidence also established that Mr Esposito had consumed cannabis that evening. The level of the drug detected was such that it could be safely concluded that Mr Esposito had smoked cannabis within the hour prior to his death and would have been under the influence of cannabis at the time of death.

The conduct of Mr Esposito, Mr Reid and Mr Mills was such as to cause concern to other patrons at the hotel. This led security staff to request the three men to “tone down” their behaviour. They were warned that if they did not do so, they would have to leave. Aggressive statements were made by Mr Esposito. Security staff approached Mr Esposito and Mr Reid to try and calm the situation. However, these attempts were unsuccessful and Mr Esposito and Mr Reid were asked to leave.
At about this time Mr Mills re-entered the gaming room and joined the others. The security officers proceeded to move the three men through the foyer with a view to their removal from the hotel. The foyer was a confined space of about 2.4 metres in width and a little over 11 metres in length. At about 8:41pm a video recording shows the security guards and the three men in the foyer. As the three men were being escorted through the foyer, and in the process of leaving the hotel, one of the men attacked members of the security staff. Soon after, the other two joined in the fight.
The incident continued for about ten minutes and came to a conclusion some minutes after the arrival of police officers and the securing by those officers of Mr Reid and Mr Mills. Shortly thereafter, it was discovered that Mr Esposito was not breathing. An ambulance was then called.
Mr Esposito, Mr Reid and Mr Mills were all engaged in the fight with the security officers. They were assaulting the security officers and were strenuously resisting the efforts of those officers to restrain them and remove them from the premises.
The police officers arrived approximately six minutes into the fight. It took those officers almost an additional four minutes to restrain Mr Reid and Mr Mills. Both Constable Pearson and Constable Valassakis described the incident as “chaotic”. Constable Pearson stated that he was scared. He described Mr Reid and Mr Mills as being aggressive, large and very violent, and Mr Reid in particular as posing a threat even after restraints were imposed.
At an early stage in the fight the defendant was struck forcibly in the face. He sustained injuries including concussion. The defendant was not otherwise directly involved in the fight. He was, however, involved in the restraint of Mr Esposito. It is apparent that before being restrained, Mr Esposito was a participant in the fight. He was restrained for a period of about eight minutes. He was initially placed in a headlock by a security officer and throughout most of the time, two or three security officers were engaged in his restraint. For the concluding five and a half minutes the defendant had Mr Esposito in a headlock.
The defendant’s account was that he was attempting to restrain Mr Esposito so that he could not get up and continue fighting, and so that he was prevented from striking and hurting the defendant and the other security officers. The defendant described ineffectually trying to hold Mr Esposito down, as Mr Esposito was strong and continued to break free. According to the defendant, Mr Esposito continued to struggle and resist, and continued his attempts to get up. The defendant stated that he wanted the police to arrive. He wanted to end his involvement in the restraint of Mr Esposito and wanted the fight to be over.
It was the prosecution case that the defendant’s manner of restraining Mr Esposito involved dangerous and unlawful conduct that caused Mr Esposito’s death, giving rise to the crime of manslaughter. The prosecution also argued that an alternative route to guilt was through negligence; that is, manslaughter by criminal negligence.
It was the defence case that he did not engage in dangerous and unlawful conduct. It was said that the defendant assisted in a lawful arrest and that the defence enacted by section 15A of the Criminal Law Consolidation Act applied. It was contended that given the defendant’s belief as to the circumstances and as to the threat posed by Mr Esposito, his conduct in restraining Mr Esposito in the way that he did was reasonably proportionate to that perceived threat. It was said that the defendant engaged in an act of self-defence within the meaning of section 15 of the Criminal Law Consolidation Act both with respect to himself and others. Again it was his case that in the circumstances as he believed them to be and having regard to the threat that he believed to exist, his conduct was reasonably proportionate to that threat. The defendant disputed that his conduct was a substantial cause of Mr Esposito’s death.
Following the incident, the defendant was taken to hospital. The Judge summarised his evidence:[5]
I will turn now to consider the evidence with regard to concussion and its effects. I refer to the evidence given by Edwards as earlier discussed.
Edwards said that he had no memory of moving away from the northern wall. His next memory, after being near the northern wall, was waking up in hospital to see the blurry faces of his parents looking down upon him. He had no recollection of the time at the hotel after hearing the voices, or of being transported to the hospital.
Edwards said that he did not feel right for the following few days after the incident; he felt dazed, sore and numb. Both his mental processes and hearing were not functioning as normal. He described a sense of not being able to differentiate between day and night, and that it felt as though those few days were just one continuous time. His vision remained blurry, his whole body was sore, and he was generally “pretty weak”. The swelling in his right eye also affected his vision.
[5] R v Edwards [2008] SASC 303 at [261]-[263].
Dr Stankiewicz treated the defendant at hospital on the night of the incident. She recounted the history taken from the defendant. She noted tenderness to the lower back and swelling and bruising on the right cheek around the eye. Dr Stankiewicz formed the impression that the defendant demonstrated signs of concussion, including amnesia, a sore neck, nausea, dry retching and problems with concentration.
The defendant’s general practitioner of 23 years, Dr White, examined the defendant the day following the incident. He observed bruising above and below the right eye consistent with a severe blow to that eye. It was Dr White’s opinion that a punch of significant force would be required to cause the bruising. He noted tenderness above the right eye and on the back of the head in the occipital area. He made a diagnosis of concussion and a post-concussion syndrome. Dr White continued to treat the defendant on 3, 8 and 15 March 2005. By 15 March 2005, the defendant complained of occasional headaches and minor discomfort under the right eye. The Judge summarised Dr White’s evidence:[6]
The diagnosis of concussion was based on the blow that Edwards received to the head; his amnesia about the event; his altered state of response to verbal commands; and his complaints of headache and nausea.   Dr White said that concussion can be caused by, “A direct blow to the head or a sudden change in movement, usually involving the head, like in a whiplash injury or in a swerving-type injury”. The blow to the head effectively shakes the brain inside the skull, which can cause injury on either the side of the direct blow, or on the opposite side. He agreed that it is consistent with concussion that a person neither remembers the blow nor what happened for a matter of seconds or minutes after that blow; it is likely that the person’s memory may be patchy.
Dr White agreed that trauma to the right eye may have caused an impairment of auditory senses, as Edwards experienced.
At the same time Dr White conceded that an injury of that nature would not necessarily cause concussion.   Further, he conceded that there was no independent way in which to verify Edwards’ complaints of tenderness on his head.   He had relied completely on Edwards’ responses when he touched those areas. He also agreed that if the blow to Edwards’ head was insufficient to cause concussion, his symptoms would have been consistent with shock. Alternatively, Edwards may have suffered from a combination of both concussion and shock, in which case, Dr White would have had no means to determine which one of the two was the major contributing factor.
…
It was Dr White’s evidence that if a person is suffering from concussion their judgment may be impaired. That is, they might do things that they might not otherwise do.   He used the example of a footballer suffering from concussion, pulling himself away from the trainers who are holding him to get back on the field. In that sense, a sufferer of concussion can have no loss of physical function, but still have a loss of memory.   However, whilst the person may not know what they are doing, their actions may still be deliberate in their nature or, in other words, willed by the brain.
[6]    R v Edwards [2008] SASC 303 at [278]-[280], [284].
Dr Flock, a police medical officer, examined the defendant some four days later. At that time, Dr Flock observed bruising of the orbit of the right eye and noted a tender area inside the hairline at the top of the head and a tender area at the back of the head.
The Judge’s Reasons
The Judge delivered extensive reasons for her verdict in which she subjected the evidence to close analysis. The Judge reviewed the video evidence in detail. In reaching her conclusions the Judge rejected the evidence of the defendant in a number of critical respects on topics where he received substantial corroboration from other witnesses.
The Judge first addressed the elements of the offence of manslaughter by an unlawful and dangerous act. The Judge found that the first element, that Mr Edwards’ actions were a substantial cause of death, had been proved beyond reasonable doubt. The Judge concluded that the conduct of the defendant in maintaining a headlock for the concluding five and a half minutes was, together with two further factors, the cause of Mr Esposito’s death. These two factors, the pressure to Mr Esposito’s back in conjunction with the ingestion of drugs, caused him to vomit in such a manner so as to obstruct his airways. However, the Judge concluded that the defendant’s conduct, in itself, was a substantial cause of death. The Judge did not make a precise finding as to the time at which the defendant’s death-causing conduct took place. The Judge concluded that Mr Esposito’s death was caused during the concluding five and a half minute period. For reasons to be discussed, the precise time of death became a critical issue on the appeal.
The Judge then turned to the second element, that is, that the acts of the defendant were dangerous in that a reasonable person in the defendant’s position would have realised that such actions would have exposed Mr Esposito to an appreciable risk of serious injury. The Judge identified that the determination of this element involved an objective test from the standpoint of a reasonable person in the circumstances of the defendant, and, having referred to authority, concluded that the age, experience and knowledge of the defendant, assuming normal fortitude and strength of mind, were to be considered.
The Judge postulated a fit, young man of 28 years, who had several years’ experience as a security officer and had held positions of authority in that work. The defendant’s training as a security officer included an awareness of restraining holds. However, he had not received formal training on the use of headlocks, but only training on how to escape from such holds. The defendant’s experience allowed him to have an awareness that pressure to the neck may have the potential to compromise the carotid arteries. He knew that pressure to the neck may be dangerous, but he did not know how dangerous.
The Judge concluded that the defendant, and therefore the reasonable hypothetical person, would not be aware that a pressure of only two kilograms applied to the jugular vein for 20 to 30 seconds could produce unconsciousness, and that if such pressure were applied for three minutes or so, then death or serious injury would result. The Judge also found that the defendant, and as a consequence, the reasonable hypothetical person, would not be aware that a force as little as five kilograms applied to the side of the neck so as to block the carotid arteries for a period of 10 to 15 seconds could result in unconsciousness, and, after a couple of minutes, death or serious injury.
The Judge then turned to the third element – unlawfulness:[7]
Turning now to the third element, namely, whether the prosecution has proved beyond reasonable doubt that the conduct of Edwards was unlawful. As indicated earlier, there are two aspects to consider. First, whether the prosecution is able to exclude that Edwards performed the actions whilst assisting the lawful arrest of Esposito. Second, whether the prosecution is able to exclude that the acts were performed by Edwards for the purpose of either his own defence or the defence of others and that those actions were reasonably proportionate.
[7] R v Edwards [2008] SASC 303 at [401].
The Judge accepted that for part of the five and a half minute period, the defendant’s conduct in his restraint of Mr Esposito was reasonably proportionate conduct within the meaning of sections 15 and 15A. However, the Judge found that at some time during the five and a half minute period, the defendant’s conduct ceased to be reasonably proportionate. The reason for the Judge’s conclusion was that at some time during the five and a half minute period, Mr Esposito ceased to struggle and restraint by headlock was no longer necessary to effect control. The Judge concluded that the defendant’s conduct became unlawful and he was guilty of manslaughter by an unlawful and dangerous act. The Judge did not make a finding as to the precise time when the circumstances changed. However, it is possible to infer from the reasons that the Judge considered that the change may have occurred about halfway through the five and a half minute period.
The Judge rejected the defence that the actions of the defendant were performed whilst assisting in the lawful arrest of Mr Esposito. The Judge concluded:[8]
I am therefore satisfied that the prosecution has excluded the defence proffered by Edwards that his actions were for the purpose of assisting with the lawful arrest of Esposito. His action in holding down Esposito for that period of time, coupled with the added pressure that he was placing on Esposito’s back, was not proportionate to the action that the circumstances warranted. I am therefore satisfied that the prosecution has proved beyond reasonable doubt that the actions of Edwards on the northern wall were in all of the circumstances unlawful.
[8] R v Edwards [2008] SASC 303 at [407].
For substantially the same reasons, the Judge rejected the defence of self-defence and in that respect concluded:[9]
I have already concluded that I am satisfied that the maintenance by Edwards of the headlocks for five and a half minutes was not reasonably proportionate to the force required to control and hold Edwards on the northern wall pending arrival and control by police. For similar reasons I am satisfied that the actions of Edwards were not reasonably proportionate to the threat that Esposito posed to the safety of Edwards and others. I particularly refer to the limited resistance of Esposito on the northern wall, the assistance from others that Edwards had in holding and controlling Esposito, and his knowledge of other holds which could have achieved the purpose of controlling and holding Esposito.
Even taking into account that the force applied can still be reasonably proportionate even if it exceeds the risk, I am satisfied beyond reasonable doubt that the actions of Edwards were well in excess of what was reasonable in the circumstances to protect himself and others. The prosecution has discharged the onus of disproof under s 15(5) of the Act. I am therefore satisfied that the prosecution has proved beyond reasonable doubt that the action of Edwards on the northern wall was unlawful.
[9] R v Edwards [2008] SASC 303 at [412]-[413].
The Judge then turned to consider manslaughter by criminal negligence. The Judge adopted earlier findings in the following terms:[10]
I have also found that the actions of Edwards were not reasonably proportionate for the purpose of assisting with a lawful arrest and that his actions were not reasonably proportionate to the threat posed by Esposito to the protection and safety of either Edwards or others. In many ways these findings assist with the assessment of whether there has been a breach of duty by Edwards. However, the reasoning process arguably differs when considering whether the breach has been of such a high degree so as to warrant criminal sanction.
[10] R v Edwards [2008] SASC 303 at [433].
The Judge took the view that conduct of the defendant in applying the headlocks in the manner and for the time that he did, fell far short of the standard of a reasonable person in his circumstances and concluded:[11]
In conclusion, the actions of Edwards in holding Esposito on the northern wall in the headlocks, as discussed, fell far below the standard of a reasonable person in his circumstances. I consider the breach was of such a high degree as to warrant characterisation of his actions as amounting to criminal negligence.
[11] R v Edwards [2008] SASC 303 at [444].
At the first trial the Judge removed from the jury’s consideration manslaughter by criminal negligence, apparently taking the view that manslaughter by criminal negligence was materially inconsistent with the charge of manslaughter by an unlawful and dangerous act. As earlier observed, in the present proceeding, the Judge convicted the defendant of the crime of manslaughter and reached the conclusion that his guilt was established by reason of an unlawful and dangerous act causing death and also by criminal negligence causing death. There is tension between these approaches. I will return to this topic later.
The Appeal
Issues on appeal
On appeal the defendant submitted that the Judge erred in a number of respects. These included a failure to correctly approach the evidence of the defendant and the other evidence supportive of his case; a failure to consider the effects consequent upon the defendant suffering from concussion and shock; a failure to give proper weight and effect to the evidence of the previous good character of the defendant when assessing his statements and evidence; a failure to have proper regard to the requisite onus of proof; and the wrongful rejection of evidence of propensity to violence on the part of Mr Esposito and Mr Mills.
The defence submitted that the Judge failed to correctly direct herself with respect to sections 15 and 15A of the Criminal Law Consolidation Act and failed to properly take into consideration all relevant matters that may have borne upon the nature of the genuine beliefs that the defendant may have held at relevant times. The defence further submitted that the Judge failed to correctly approach the question of “proportionality”. It was said that the Judge compared what the defendant did with the circumstances as the Judge found them to have actually been, rather than comparing what the defendant did with the circumstances as he may have genuinely believed them to be.
It was further contended that the defences addressed in sections 15 and 15A were applicable to manslaughter by criminal negligence. It was said that the concussion and shock suffered by the defendant were relevant to a consideration of manslaughter by criminal negligence. It was claimed that the Judge erred in failing to address these considerations.
During the course of the hearing of the appeal, attention was focussed on the evidence as to the time of death. The submission developed that, accepting the Judge’s findings, it should be concluded that the prosecution had not excluded the reasonable possibility that death did not result from unlawful acts of the defendant. It was unclear from the appeal papers as to whether this question had been raised during the trial. The Director accepted that as the issue arose from the Judge’s reasons, it was an appropriate matter to be addressed on appeal. It was submitted that this Court should set aside the verdict of the trial Judge and substitute a verdict of acquittal or alternatively order a retrial.

The Director of Public Prosecutions disputed each of the above grounds of appeal, and argued that if there were any errors of fact or law established, it was a case for the application of the proviso.[12]
[12] Section 353(1) Criminal Law Consolidation Act.
Fact finding process flawed – the video recording
Central to the defence case was the defendant’s evidence as to his conduct at relevant times as well as the evidence of other witnesses present at those times. The defendant and other witnesses recounted that Mr Esposito was continuing to be restrained because he continued to struggle for almost the entire time whilst at the northern wall, the earlier referred to period of about five and a half minutes. This evidence was rejected. This rejection turned in part on the reliance placed on the video recording, which the Judge assessed as being of such weight as to lead to the rejection of evidence said to support the defence case. It also turned on the Judge’s rejection of the defendant’s account with only very limited regard to the unchallenged good character evidence.
The Judge discussed inconsistencies in the evidence of witnesses at the scene, and against this background said:[13]
…In short, there were many variations and differences between the witnesses and their evidence, particularly on such difficult matters as the sequence of events, their timing and who was doing what in a situation which was highly complicated and confusing.
As a consequence, I have had to rely heavily on the video which showed most, but not all, of the action which took place in the gaming room and the foyer. This footage is the most objective evidence as to when and where action took place and between whom. It has required a painstaking viewing in order to extract the best and most accurate information. As the video does not record all of the action, particularly the crucial evidence connecting Edwards and Esposito on the northern wall where the headlock was allegedly applied by Edwards, necessarily, my findings are based on a combination of what is seen on the video, together with evidence given by witnesses, as well as inferences which I have drawn.
(emphasis added)
[13] R v Edwards [2008] SASC 303 at [25]-[26].
The Judge then went on to discuss the way in which the video recording was created, noting some of the difficulties associated with the evidence:[14]
Viewing the video footage and the DVD was not without its difficulties. Not only were the images stilted as a result of recording only five frames per second, the images were grainy and depicted only in black and white. Great care was required in deciphering the exact movements of individual people, and it often required moving frame by frame, back and forth, in order to ascertain what was depicted, who people were, where they had come from and where they went.
The detailed viewing of the video also disclosed the deficiencies and unreliability of witnesses’ evidence. Having said that, there were many occasions where there was commonality between a witness’ evidence on particular events and what I saw depicted on the video.
[14] R v Edwards [2008] SASC 303 at [32]-[33].
The video recording was from an elevated camera directed toward an area in the foyer in the vicinity of an ATM. From that position, it recorded some of the relevant events occurring in the foyer. There were several problems associated with the video recording. As noted by the Judge, the camera recorded five frames per second, that is, an image was only taken every one-fifth of a second. The human eye and brain record images more frequently than every one-fifth of a second. As the Judge observed:[15]
The DVR was a centralised computer database which stored the video footage of the 16 different security cameras placed throughout the hotel. As noted above, camera 9 was the most relevant camera for the purposes of this matter and was located in the foyer above the ATM. The DVR itself became an exhibit, as this was the means to access and replay the images recorded from the cameras. Each camera recorded five frames per second. An image was therefore taken every fifth of a second. This type of recording affects the way the footage appears to the human eye when replayed, as the images do not appear as continuous fluid motions.
[15] R v Edwards [2008] SASC 303 at [29].
As a consequence the video images had a stilted or jerky appearance, as it did not show a complete continuous film of any movement. As the Judge noted, the video recording was in black and white, was two-dimensional, grainy and of poor quality. The Judge noted particularly that:[16]
In making my findings, I have been conscious of the problems and limitations of the video as to its reliability in depicting actions to a viewer.
[16] R v Edwards [2008] SASC 303 at [28].
Despite noting the problems and limitations of the video recording, importantly, the Judge did not refer to the inherent limitation arising from the elevated position of the camera. This important limitation was the subject of written expert opinion evidence tendered by consent at the trial from Associate Professor Spring. It was the Professor’s opinion that:
The video images in question may show an overall impression of the events that happened, but are not of sufficient quality to determine detail. Small detail, including movement, may be missed due to poor resolution, image compression and inherent noise in the system. This becomes more and more problematic the further the area of interest is from the camera as well as the angle of the camera. In this case, the area of interest is far from the camera and the angle would make any vertical movement difficult to impossible to detect.
(emphasis added)
The limitation referred to by Professor Spring and emphasised above, called for careful consideration. The Judge made no reference to the report of Professor Spring in her reasons.
It is evident from the Judge’s reasons that her review of the video recording was a critical factor in her rejection of important aspects of the defendant’s evidence, as well as evidence of other witnesses supportive of the defence case. This is illustrated by the following extract from the Judge’s reasons:[17]
[17] R v Edwards [2008] SASC 303 at [27].
I have relied substantially on the video, supplemented by such evidence given by witnesses where it appeared to be consistent with what I could see on the video. I have considered all the evidence given by each of the witnesses in deciding what evidence I accept or reject, having regard to what is shown on the video. I have accepted some evidence of some witnesses on certain aspects, even though other aspects of their evidence was questionable in its reliability.
(emphasis added)
The Judge relied on the video images in rejecting the defendant’s account of Mr Esposito’s struggles and the need for restraint:[18]
During this time Esposito continued to be held by Edwards and James, with Pix towards the end moving away to assist Kohler [to] deal with Reid. The video reveals that Esposito is not seen to move at any time during this hold. I reject the evidence of James, Spencer and Edwards that Esposito continued to struggle or resist.
(emphasis added)
The Judge also relied on the video images in further rejecting the evidence of other witnesses on the same topic:[19]
I reject James’ evidence as to the movement of Esposito. Whilst I can accept that Esposito, in the early stages of James sitting on his legs, made some attempt to extricate himself which may not be seen on the video, I do not accept that this continued for the entire time in which she sat on him, nor that he was “bucking”. Her evidence, together with that of Spencer to the same effect, appears to be an exaggerated and retrospective justification for the positions adopted for controlling Esposito. The very slight movement by Esposito as seen on video once James sits on his legs appears to be the product of James moving on the unresisting legs of Esposito. Alternatively, even if the movement of Esposito was voluntary, it does not amount to “bucking” resistance.
…
I cannot exclude a reasonable possibility that Esposito was moving voluntarily to some small degree at the early stages, however, I reject the evidence of James, Spencer and Edwards as to the movement of Esposito. During this period of time Esposito was well under control and was not bucking and resisting. He was being held down by three security officers; Edwards, Pix and James, with Courtney assisting for a short time in a peripheral way. Pix and later James at 20:47:59 were applying pressure to Esposito’s upper back.
[18] R v Edwards [2008] SASC 303 at [248].
[19] R v Edwards [2008] SASC 303 at [222], [236].
The video recording, due to the limitations identified by the Judge, but more importantly, the further limitation identified by Professor Spring, did not provide a sound basis for the rejection of the evidence referred to in the above extracts, and in particular, should not have been used as a basis on which to make a finding as to the full extent or attempted extent of movement by Mr Esposito.
There is a ready explanation for why any struggling by Mr Esposito might not have been detected at relevant times. Whilst at the northern wall, Mr Esposito was restrained not only by Mr Edwards, but by several other security officers who were lying over Mr Esposito with their combined weight bearing down on him. In such a position, it is reasonably possible that Mr Esposito was struggling, was resisting the restraints of the security officers and was doing so forcibly but ineffectually. Such restrained movement is unlikely to have been visually detectable on the viewing of the video recording, particularly having regard to the problems and limitations of that recording as outlined.
Having regard to the foregoing, the emphasised passage in the following finding of the Judge cannot be sustained.[20]
As to Edwards’ actions on the northern wall, I am satisfied that Edwards genuinely believed that it was necessary and reasonable for him to apply an arm bar hold and then a choker hold for a short period of time. I accept Edwards’ evidence that at that point of time he was “just trying to hold him down so he couldn’t get up and fight any more, and he couldn’t hurt me or hit anyone else. I just wanted to hold him down”. I reject Edwards’ evidence that he genuinely believed and felt Esposito resisting the whole time he held him.
(emphasis added)
Nor the following consequential conclusions:[21]
I have already concluded that I am satisfied that the maintenance by Edwards of the headlocks for five and a half minutes was not reasonably proportionate to the force required to control and hold Edwards on the northern wall pending arrival and control by police. For similar reasons I am satisfied that the actions of Edwards were not reasonably proportionate to the threat that Esposito posed to the safety of Edwards and others. I particularly refer to the limited resistance of Esposito on the northern wall, the assistance from others that Edwards had in holding and controlling Esposito, and his knowledge of other holds which could have achieved the purpose of controlling and holding Esposito.
(emphasis added)
The Judge’s findings as emphasised above were a direct result of the Judge’s earlier finding that the video images did not depict ongoing struggle by Mr Esposito.
[20] R v Edwards [2008] SASC 303 at [410].
[21] R v Edwards [2008] SASC 303 at [412].
There is a further difficulty with the Judge’s approach to the video evidence, relating to the expressed view that “as a consequence [of the inconsistencies, variations and differences in the oral testimony] I have had to rely heavily on the video”.
The fact that other evidence was confusing did not oblige the Judge to rely heavily, or at all, on the video recording. The video recording was relevant and probative evidence but with the earlier referred to limitations and consequent weaknesses. This evidence was to be assessed and given appropriate weight having regard to its limitations. The task of the Judge was to weigh all the evidence in reaching conclusions and findings and not to be obliged to place reliance on particular evidence as a consequence of other evidence being viewed as confusing and inconsistent. If consideration of the entirety of the evidence allowed the reasonable possibility that the defendant’s account or explanation was correct, then he was entitled to be acquitted. To express the proposition differently, if the consideration of the entirety of the evidence demonstrated that the prosecution had not excluded a reasonable hypothesis consistent with innocence, the defendant was entitled to be acquitted.
Fact finding flawed – good character evidence
The defendant contended that the Judge failed to accord to the evidence of good character its full relevance. This evidence was given by the defendant and two other witnesses. It was said that this failure resulted in the Judge’s rejection of critical aspects of the defence case.
The defendant complained that the erroneous findings of the Judge as to his credit permeated her consideration of the entirety of his evidence. An instance highlighted by the defendant was the Judge’s findings in relation to the effects of the concussion sustained by the defendant. The Judge rejected the defendant’s statement and evidence about the severity of the concussion sustained:[22]
Taking into account the whole of the evidence, I have significant doubts about the severity of the symptoms complained about by Edwards. The evidence of the medical practitioners is largely dependent upon acceptance of Edwards’ evidence as to the extent of his symptoms. Having said that, I cannot exclude the possibility that he did suffer from concussion to some degree. I am satisfied beyond reasonable doubt that Edwards suffered from some minor concussion associated with some slight amnesia, and was slightly dazed after being punched. I am also satisfied beyond reasonable doubt that some of his symptoms, which were seen by ambulance officers and later by Dr Stankiewicz at the hospital, were attributable to shock from a combination of the events in the foyer, the punches, and the outcome of his involvement with Esposito. Undoubtedly after that time he would have been shocked and distressed, which is likely to account for the florid nature of his symptoms at the time he was seen by ambulance officers and at the hospital.
(emphasis added)
Counsel for the defendant contended that this rejection further impacted upon the defendant’s case when the Judge came to consider the defences raised pursuant to sections 15 and 15A; the findings as to concussion were relevant to the assessment of the genuine beliefs of the defendant.
[22] R v Edwards [2008] SASC 303 at [286].
The defendant was aged 28 years at the time of the incident on 27 February 2005. He completed year 12 and then an apprenticeship with ETSA. Thereafter he worked for ETSA for a further five years. In 2003 he joined and was employed by the Metropolitan Fire Service at the time of the incident. In the late 1990s he took on his part-time security work as a second job.
The defendant put his character in issue. He gave unchallenged evidence that he had no criminal antecedents. He called positive evidence of good character.
Dean Bowden, a Senior Fire Commander at Adelaide Airport, had known the defendant since 2003. He spoke of the defendant being reliable and diligent in his aviation fire duties and as being well respected by his peers.
Gregory Crossman, the Commanding District Officer of the Metropolitan Fire Service, gave evidence that he had known the defendant for more than five years through the Australian Professional Firefighters Foundation. He testified that the defendant enjoyed a very good reputation amongst those who knew him. He added that the defendant had a reputation for being very honest:
Q.Can you tell her Honour what [the defendant’s] reputation is amongst the people who you know who know him.
A.Very highly regarded. [The defendant’s] an enthusiastic supporter of all of the endeavours of the foundation and has contributed to the foundation’s objectives in a positive manner since his involvement, which is over five years.
Q.Apart from his enthusiasm for the foundation, what’s his general reputation. What sort of a young man is he.
A.He’s certainly considered by myself and others to be a very honest and caring young man, that is demonstrated in all the traits of being a decent citizen.
None of this evidence was challenged. The Judge accepted the evidence of Mr Bowden and Mr Crossman whom she described as speaking “highly of Edwards’ honesty and integrity”.
As earlier observed, the Judge reached the conclusion that the defendant’s evidence lacked credibility. This conclusion was directly reflected in several paragraphs of the Judge’s reasons and indirectly reflected in others. The following example suffices to indicate the extent of the rejection of his evidence:[23]
I reject Edwards’ evidence that Esposito was resisting during the whole time he held Esposito in the third position and, more particularly, the fourth position discussed hereafter. This evidence by Edwards is implausible given my finding as to cause of death discussed hereafter. His evidence appears to be a retrospective justification for his actions and appears to be a very convenient selective feature to remember in an otherwise limited description and memory of his actions while holding Esposito on the northern wall.
(emphasis added)
It may be concluded that the rejection of the defendant’s evidence about the severity of the concussion coloured the Judge’s weighing of his evidence when addressing the circumstances surrounding the death of Mr Esposito.
[23] R v Edwards [2008] SASC 303 at [233].
It was submitted by the defendant that the Judge’s approach to the evidence of good character was flawed and fundamentally so. Attention was drawn to the following conclusion of the Judge:[24]
I accept the evidence given by character witnesses who speak highly of Edwards’ honesty and integrity. However, their evidence is of limited relevance as the events of this night were not a typical part of ordinary or work life. Edwards had been placed in circumstances not of his choosing, in which he was exposed to a difficult and stressful situation with a distressing outcome in which he was directly involved.
There is no further reference to the defendant’s good character or its relevance in the Judge’s reasons.
[24] R v Edwards [2008] SASC 303 at [287].
It was submitted that authority establishes that good character evidence is relevant for several purposes. The Court should consider the likelihood of the accused committing the crime charged and should consider prior good character when assessing the account proffered by the defendant, and in a case where the accused gives evidence, the credibility of the defendant as a witness. The defendant drew attention to the observations of King CJ in Trimboli:[25]
I think that it is possible to lay down some propositions which might be of assistance to the judge at the new trial and to other trial judges.
It is desirable in all cases in which there is evidence as to the accused’s good character that a direction be given as to the use to which that evidence should be put.
No particular form of words is necessary, but the direction should convey to the jury that they should bear in mind the accused’s previous good character when considering whether they are prepared to draw from the evidence the conclusion of the accused’s guilt. They should bear it in mind as a factor affecting the likelihood of the accused committing the crime charged. The judge may add, if he thinks it appropriate in the particular case, that the jury should consider the accused’s previous good character in assessing the credibility of any explanations given by him and, when he has given evidence, his credibility as a witness.
The judge is, of course, at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing notwithstanding the accused’s previous character. This last consideration may apply with particular force to certain types of crime and the judge is, of course, free to point that out to the jury if he sees fit.
It was complained that the Judge did not consider the full extent of the relevance of the good character evidence and that as a consequence, when assessing the defendant’s credibility, the Judge did not adequately weigh the evidence of good character.
[25] R v Trimboli (1979) 21 SASR 577 at 578.

As earlier observed, the Judge, primarily by reference to the video recording, made detailed findings of the events that occurred during the altercation, at times on an almost second by second basis. Findings in this respect included the period during which the defendant restrained Mr Esposito by the northern wall. The Judge found that Mr Esposito died during that period as a result of several factors and concluded that the restraint applied by the defendant was a substantial cause of Mr Esposito’s death. However, I repeat, the Judge made no precise finding as to when the conduct causing death occurred during the five and a half minute period at the northern wall.
Time of death became a critical concern as a consequence of the following further findings made by the Judge when dealing with the section 15A defence:[38]
After Esposito was dragged across to the northern wall and after he was initially controlled by Edwards in an arm bar hold, he was then held by Edwards for five and a half minutes in either a choker hold or sleeper hold. The headlocks were applied by Edwards in a situation where generally three other persons were also holding Esposito down. While a certain period of time could have been regarded as reasonably proportionate in order to ensure control, the maintenance of the headlocks over that period of time was not reasonably proportionate for the purposes of controlling Esposito. Edwards had a knowledge of other holds, particularly an arm bar hold, and other persons were assisting. There was, in my view, no warrant for continuing with the headlocks over that period of time, particularly over the third and fourth positions when Esposito was not resisting.
I am therefore satisfied that the prosecution has excluded the defence proffered by Edwards that his actions were for the purpose of assisting with the lawful arrest of Esposito. His action in holding down Esposito for that period of time, coupled with the added pressure that he was placing on Esposito’s back, was not proportionate to the action that the circumstances warranted. I am therefore satisfied that the prosecution has proved beyond reasonable doubt that the actions of Edwards on the northern wall were in all of the circumstances unlawful.
(emphasis added)
The Judge further observed with respect to the section 15 defence:[39]
As to Edwards’ actions on the northern wall, I am satisfied that Edwards genuinely believed that it was necessary and reasonable for him to apply an arm bar hold and then a choker hold for a short period of time. I accept Edwards’ evidence that at that point of time he was “just trying to hold him down so he couldn’t get up and fight any more, and he couldn’t hurt me or hit anyone else. I just wanted to hold him down”. I reject Edwards’ evidence that he genuinely believed and felt Esposito resisting the whole time he held him.
With regard as to whether Edwards’ actions on the northern wall were reasonably proportionate to the threat that Esposito posed to the safety of either Edwards or others, I refer to the earlier findings. This discussion, together with my conclusions and reasoning, is also pertinent here. Proportionality is common to both defences, albeit the purpose of the conduct differs; assisting in a lawful arrest on the one hand and defence of self or others on the other.
(emphasis added)
[38] R v Edwards [2008] SASC 303 at [406]-[407].
[39] R v Edwards [2008] SASC 303 at [410]-[411].
It is evident from the Judge’s finding that “while a certain period of time [during the five and a half minute period] could have been regarded as reasonably proportionate, in order to ensure control” that a defence under section 15 or 15A had not been excluded by the prosecution for at least part of the five and a half minute period. The question that arises is whether there was a reasonable possibility that the conduct of the defendant as found by the Judge to be a cause of death, occurred during a time when his restraint of Mr Esposito was reasonably proportionate conduct. The answer to this question requires an examination of the evidence of Dr Gilbert with respect to the cause of death.
Dr Gilbert, a qualified forensic pathologist, conducted an autopsy on the body of Mr Esposito. He also had regard to a number of declarations of witnesses and viewed the video recording. Apparently Dr Gilbert acted under the uncorrected misapprehension that the period of time during which the defendant restrained Mr Esposito at the northern wall was eight minutes rather than five and a half minutes.
In Dr Gilbert’s opinion there were three factors that were possible contributors to the cause of death: the application of restraining holds by the defendant to Mr Esposito’s neck; pressure being applied to Mr Esposito’s back; and vomit blocking the airways. Dr Gilbert was of the opinion that having regard to the time during which Mr Esposito was restrained in a headlock, this restraint was a major contributor to death.
Dr Gilbert noted that Mr Esposito had been the subject of headlocks at times before he was at the northern wall. In addition to the application of those earlier headlocks Mr Esposito had been subject to pressure to his back. It is possible that there had been some vomit material blocking his airway from an earlier time. Mr Esposito’s consumption of alcohol and cannabis may have contributed to vomiting. In Dr Gilbert’s opinion events prior to Mr Esposito being moved to the northern wall may have led to him suffering some form of oxygen deficit. In addition to the above, there was the general circumstance of the struggle that contributed to an oxygen deficit.
Dr Gilbert expressed the opinion that a headlock performed as a sleeper hold could lead to loss of consciousness within 20-30 seconds and that a headlock by way of a choker hold could lead to the loss of consciousness in 10-15 seconds. A combination of the two, in Dr Gilbert’s view, could lead to a loss of consciousness within the shorter period of 10-15 seconds. If the flow of oxygen continued to be so restricted, death would result several minutes later. Dr Gilbert indicated that in these circumstances, death could result in about three minutes.
Dr Gilbert was not asked about the possible cumulative effect of earlier events that may have caused an oxygen deficit in conjunction with the events which followed.
As noted, Dr Gilbert was also of the opinion that pressure to the back applied in a manner consistent with what could been seen on the video recording together with vomit obstructing the airways could inhibit the flow of oxygen.
In the above circumstances, the question that arises is whether the prosecution had excluded the reasonable hypothesis that the conduct of the defendant leading to Mr Esposito’s death had been occasioned early in the five and a half minute period, for example, at the time when headlocks were first applied. It might be assumed that a person was likely to apply more force initially at the time when active struggling first commenced. As the Judge observed, the defendant placed Mr Esposito in a headlock at the outset of the five and a half minute period. This followed earlier acts that may well have caused an oxygen deficit. In these circumstances the conclusion may be reached that the prosecution had not excluded the reasonable hypothesis that the conduct of the defendant giving rise to death did in fact occur earlier in the five and a half minute period rather than later.
The above discussion demonstrates that the period of time during which the Judge found the defendant’s conduct to be reasonably proportionate becomes critical. It may be inferred from observations made by the Judge that she took the view that the defendant’s conduct ceased to be reasonably proportionate at about the mid point of the five and a half minute period, as this was the time that she considered Mr Esposito ceased to struggle. Given all of the Judge’s other findings it is difficult to see how one could be precise about the exact moment at which the conduct became disproportionate. No doubt this explains the absence of any specific finding in this respect.
The above considerations lead to the conclusion that, on the Judge’s findings, the prosecution did not exclude a reasonable hypothesis consistent with innocence - that the conduct leading to the death of Mr Esposito had occurred at a time when the defendant was acting lawfully and had available to him defences under sections 15 and 15A of the Criminal Law Consolidation Act.
Propensity evidence
Evidence was led in the trial that Mr Esposito and his associate Mr Mills had on other occasions engaged in unlawful conduct. The evidence concerning Mr Esposito, related to his conduct at a public entertainment event, a month prior to the subject incident. The evidence concerning Mr Mills, related to his behaviour at a hotel, on an occasion subsequent to Mr Esposito’s death. The defence sought to use the evidence to establish a propensity on the part of Mr Esposito and Mr Mills for engaging in violent conduct upon being evicted from a hotel or an entertainment event. The Judge addressed this evidence and its suggested relevance as follows:[40]
I conclude that the evidence about two other incidents involving Mills and Esposito is not logically probative of a fact in issue in relation to the guilt or innocence of Edwards. Further, even if it was admissible, it has little probative force. It adds little if anything as to how Mills or Esposito behaved on the night at the hotel as described by a number of different witnesses and as depicted on the video. I therefore have had no regard to this evidence in reaching my findings of fact.
[40] R v Edwards [2008] SASC 303 at [372].
Evidence of a relevant propensity or disposition on the part of a deceased in a homicide case or of a prosecution witness is relevant and admissible if it is logically disprobative of guilt.[41]
[41] Knight v Jones [1981] Qd R 98 at 101-4; Re Knowles [1984] VR 751 at 765-768; Cheney v R (1991) 28 FCR 103 at 368-369.
The conclusion of the Judge that the evidence was not logically probative of a fact in issue in relation to the guilt or innocence of the defendant was a conclusion that was open to the Judge. The evidence at best was of little probative value
Acquittal or new trial
Section 353 of the Criminal Law Consolidation Act addresses the orders that the Court may make when allowing an appeal. Subsection (1) provides:
The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
It is evident from the foregoing that I have reached the conclusion that the Judge erred in a number of respects that would in the ordinary course lead to an order for a new trial. There is no room for the application of the proviso. However, the question of whether there was a reasonable possibility that the conduct of the defendant causing death was lawful conduct and the defences under sections 15 and 15A raise different considerations. If all other complaints are put aside, but this reasonable possibility had not been excluded, it would follow that the prosecution had failed to prove the charge beyond reasonable doubt. In these circumstances, it would be inappropriate to order a new trial. The appropriate order would be an order that a verdict of acquittal be substituted.
As earlier discussed, the question of the consequence of the lack of determination as to time of death did not arise directly during the trial, but arose from the Judge’s findings. The defendant’s case at trial was that he acted times lawfully and that the force used to restrain Mr Esposito was reasonable and proportionate in the circumstances. It was his case that at the very least, he had a reasonable belief that gave rise to defences under sections 15 and 15A and that he was entitled to be acquitted. It was also the defendant’s case, that his conduct had not caused the death of Mr Esposito. The Judge rejected the defences and found that the prosecution had proved each element of the offence beyond reasonable doubt. However, in reaching the verdict of guilty, the Judge made findings that left open the reasonable possibility that the acts of the defendant that caused death, were lawful acts. It would be unfair and unjust to preclude the defendant from raising this issue on appeal.
The Director did not oppose the matter being raised on the appeal. The Director’s attitude was an appropriate one. It is irrelevant that the topic was not raised during the trial. The question arises directly from the Judge’s reasons.
The reasonable possibility that the defendant was acting lawfully arose from the evidence of Dr Gilbert and the findings of the Judge. The Director was unable to demonstrate on the evidence and the Judge’s findings that this reasonable possibility was excluded. When regard is had to Dr Gilbert’s inability to identify with precision either the time of death, or the time the acts causing death occurred, it is apparent that this reasonable possibility could not be excluded by the prosecution on a new trial. The defendant is entitled to a verdict of acquittal.
In the above circumstances there is no need to consider the appeal against sentence.
Conclusion
I would allow the appeal. I would set aside the conviction and sentence. I would enter a verdict of acquittal.
VANSTONE J: I would allow the appeal and quash the conviction. My reasons for doing so are relatively confined. They amount to a finding that the seventh ground of appeal, which asserts that the conviction is unsafe and unsatisfactory, is made out. However, as will be seen, I draw on some factual matters presented in relation to some of the other grounds of appeal.
I focus on the findings of the learned trial judge in respect of what the judge encapsulates as “Edwards holding Esposito on northern wall 20:43:26 – 20:49:24”. In her reasons at [168] and [169] the judge divides the period of approximately six minutes described by these times into what she calls “four positions”. I set them out.
First position appears to be between 20:43:50 and 20:45:05.
Second position is between 20:45:05 and 20:46:17.
Third position is between 20:46:17 and 20:48:18.
Fourth position is between 20:48:19 and 20:49:24.
It was the appellant’s evidence that Esposito continued to struggle throughout all four time periods. The judge rejected his evidence to that effect. In a series of paragraphs commencing at [402] and extending to [413], the judge considered her findings of fact in light of the appellant’s defences of assisting in the lawful arrest of an offender and self-defence or defence of others. For my purposes there will be no difference in the results of the application of the two tests.
In relation to both assisting in the lawful arrest of Esposito and self-defence or defence of another, the judge found that the appellant had the relevant genuine belief. Indeed, not only did the judge admit of the reasonable possibility that he had such a belief, but she made a positive finding, apparently on the criminal standard, to that effect: [403] and [409]. Although the judge did not specifically say that the appellant held this belief throughout the time occupied by the four positions, I infer as much from the structure of her reasons. The live issue in each case was, therefore, whether the prosecution could prove that the appellant’s “conduct was not, in the circumstances as [he] genuinely believed them to be, reasonably proportionate to the threat that [he] genuinely believed to exist: s 15(2)(b) and s 15A(1)(c)”.
In the period commencing before the four positions described, namely a period which the judge described by reference to the southern wall, the judge found that the appellant’s actions were reasonably proportionate to the relevant threat. She went on to say that “a different situation arises in relation to [the appellant’s] actions near the northern wall”: [405]. The judge then made the following findings:
406After Esposito was dragged across to the northern wall and after he was initially controlled by Edwards in an arm bar hold, he was then held by Edwards for five and a half minutes in either a choker hold or sleeper hold. The headlocks were applied by Edwards in a situation where generally three other persons were also holding Esposito down. While a certain period of time could have been regarded as reasonably proportionate in order to ensure control, the maintenance of the headlocks over that period of time was not reasonably proportionate for the purposes of controlling Esposito. Edwards had a knowledge of other holds, particularly an arm bar hold, and other persons were assisting. There was, in my view, no warrant for continuing with the headlocks over that period of time, particularly over the third and fourth positions when Esposito was not resisting.
In relation to the appellant’s asserted defence of others, the judge made parallel findings at [412]. It is sufficient for my purposes to refer to the findings in [406].
It appears to me that the judge was there finding that for a certain period – which remained unspecified and which, in all probability, could never be specified – within that five minutes, the appellant’s actions were lawful. Towards the end of the paragraph the judge stresses that, particularly in the third and fourth positions which occupied three minutes, the continuation of the headlocks was not warranted and, I take her to mean, not lawful. By inference, the judge is saying, I think, that during the first two stages occupying two and a half minutes, the actions of the appellant were justified.
If that is so, then on the basis of a continuation of what had begun as lawful conduct, the appellant has been found to have committed manslaughter. Such a finding was open to the judge, but I continue.
The finding that the conduct became unlawful rested almost entirely on conclusions drawn from the video which showed some parts of the activity in the relevant area. The judge acknowledged in her reasons that she was forced to rely heavily on the video because of the inconsistencies inherent in the eye-witness accounts, and implicitly, the rejection of a number of those accounts. The defence tendered a statement of Associate Professor Gail Spring of the School of Applied Science and Applied Physics, Royal Melbourne Institute of Technology. Her particular expertise is in photography. Associate Professor Spring highlighted some of the inherent difficulties in making use of footage taken by surveillance cameras. Her statement included the following passage:
The video images in question may show an overall impression of the events that happened, but are not of sufficient quality to determine detail. Small detail, including movement, may be missed due to poor resolution, image compression and inherent noise in the system. This becomes more and more problematic the further the area of interest is from the camera as well as the angle of the camera. In this case, the area of interest is far from the camera and the angle would make any vertical movement difficult to impossible to detect.
That last observation is particularly important in my view. It is apparent that the judge has concluded on the strength of the video that, at some point, Mr Esposito stopped struggling. As I have said, that conclusion was contrary both to the evidence of the appellant and also of some other witnesses. Having regard to the elevated position of the video camera, and also, given the limited and often interrupted view which the camera had of Mr Esposito, it may be that even if he had attempted to move during the third and fourth positions, such movements would not have been visible on the footage. Again, this was a matter squarely before the trial judge, for her decision. However, she did not grapple with Associate Professor Spring’s statement in her lengthy reasons. In my view, this was a significant part of the defence case and, if it were to be rejected by the judge, as must have happened, it needed to be dealt with in the reasons.

Paragraph 406 gives rise to another difficulty, in my mind. When the judge speaks of what was reasonably proportionate, she seems to be taking an objective view of what was, in hindsight, required to subdue Mr Esposito. I acknowledge that at [404] the judge specifically referred to the issue of whether what the appellant did was “reasonably proportionate to the circumstances which Edwards believed to exist”. I would not lightly infer that the need to base the objective assessment on the circumstances as the appellant believed them to be would be overlooked, especially in the space of a couple of paragraphs. However, it is common ground that the appellant had sustained a blow to the head prior to this period. The judge had found that he suffered at least mild concussion from it. On any view, the events were frightening and frenetic. In the appellant’s state of (at least) mild concussion the situation would have seemed even more urgent than it actually was. It does not appear to me that the judge has factored in to the circumstances as the appellant saw them, his undoubted head injury.
In the following paragraph, 407, the judge went on to say:
His action in holding down Esposito for that period of time, coupled with the added pressure that he was placing on Esposito’s back, was not proportionate to the action that the circumstances warranted.
In that sentence the judge moved further from an acknowledgement that the circumstances to be considered were those perceived by the appellant. Moreover, what might be seen to be encompassed by the expression “reasonably proportionate”, must necessarily be greater than what is merely “warranted”. It is worth noting again that throughout this period the judge seems to have found as a fact that Edwards’ genuine belief that it was necessary to control and hold Esposito down, subsisted. Again, that was a positive finding, not merely something which the prosecution failed to disprove.
For at least part of the period occupied by the four positions on the northern wall, police were present. Plainly, whatever hold the appellant was employing on Mr Esposito was not so apparently disproportionate to the threat presented by Mr Esposito, or overtly dangerous, that police felt the need to intervene. On the contrary, the judge found that the appellant was told to maintain control of Mr Esposito until the police could take over: [294]. At all times, it seems that the appellant was attempting to restrain Mr Esposito for the assistance of the police.
In my mind the combination of the admitted reliance on the photographic evidence to the exclusion of much eye-witness evidence – but without any reference to the cautionary statements in the statement of Associate Professor Spring – and the finding that for at least some of the period occupied by the four positions on the northern wall the accused’s actions were reasonably proportionate to the threat Mr Esposito presented, the co-existent finding that, throughout, the appellant held the genuine belief required by s 15 and s 15A, and the failure to explicitly take account of the concussion suffered by the appellant when assessing the circumstances as he perceived them to be, render unsafe the ultimate conclusion that the quality of the appellant’s actions at the third and fourth positions changed from being lawful to unlawful.
I do not consider that the finding based on criminal negligence can stand either. In my mind, in this case, where the very same allegations are the basis of the suggested culpability in terms of either unlawful and dangerous act or criminal negligence, and where the defence is one based on s 15 or s 15A, the ambit of the prosecution case would not be increased by reliance on criminal negligence. If the process of reasoning leading to a finding of guilt of unlawful and dangerous act is undermined, then necessarily, the conviction on the basis of criminal negligence would also fall. That is because if there were a doubt as to the unlawfulness of the act causing death, then it could not be said that the requisite criminal negligence was established. I am not sure that I would put it in terms of s 15 providing a defence to manslaughter by criminal negligence, but it is not necessary for present purposes to descend to a more detailed examination of that issue.
On my analysis, the conviction should be quashed. That raises the question whether the matter should be sent back for a re-trial. It would then be for a new judge or jury to assess the evidence having regard to the correct tests and taking into account all the relevant factual matters. There have now been two trials of this charge and the appellant has served a significant part of the sentence which was imposed in respect of it. Given that the judge from whom this appeal comes has made important factual findings in favour of the appellant – namely as to his genuine belief and, to an extent, as to reasonable proportionality – there are strong arguments that the appellant should not be tried again. However, that is a matter appropriately left for the decision of the Director of Public Prosecutions.
In view of my decision on this ground it is unnecessary for me to traverse the other grounds of appeal. It is sufficient to say that I would not have allowed the appeal on the basis of any of those. The possibility of Mr Esposito having died much earlier in the five and a half minute period on the northern wall was not raised at trial. On the defence case that possibility could not be entertained. The appellant clearly said that Mr Esposito continued to struggle throughout and that he never believed he had total control of him. I do not think this Court should go behind the manner in which the case was conducted at trial. I agree with the reasons of Doyle CJ in respect of the balance of the grounds.
I would quash the conviction and order a re-trial.