R v Edwards

[2008] SASC 303

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v EDWARDS

Criminal Trial by Judge Alone

[2008] SASC 303

Reasons for the Verdict of The Honourable Justice Layton

6 November 2008

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - CRIMINAL NEGLIGENCE

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - TRIAL HAD BEFORE JUDGE WITHOUT JURY

Trial by judge alone - accused charged with manslaughter either by unlawful and dangerous act or criminal negligence - deceased and two friends were being evicted from hotel by four security officers for offensive and disorderly behaviour - initial altercation between the three patrons and the four security officers - later involving seven security officers and a hotel staff member - deceased held down by accused in two headlocks being a choker hold and sleeper hold for five and a half minutes - accused intermittently assisted by three or more security officers and a staff member with control of deceased - death of deceased by asphyxiation.

Cause of death - whether accused's actions caused death - whether asphyxiation contributed to by upper back pressure or vomit.

Relevance of concussion of accused to elements of manslaughter or circumstances of the accused - relevance of directions given by police or supervising security officer - relevance of propensity evidence called by defence as to behaviour of deceased and one of the three patrons on two different occasions.

Manslaughter by unlawful and dangerous act - objective test - reasonable hypothetical person imbued with knowledge, skills and experience of accused - circumstances of the accused - whether actions of accused were performed to assist with a lawful arrest - whether actions performed for purpose of self defence or defence of others - whether actions of accused were reasonably proportionate.

Manslaughter by criminal negligence - duty of care of security officers - whether actions of accused in breach of duty of care - whether actions of accused were reasonably proportionate - whether breach is of such a high degree as to warrant criminal sanction - whether contributory negligence operates as defence to manslaughter by criminal negligence.

Held: accused guilty of manslaughter by both unlawful and dangerous act and criminal negligence - actions of accused were not reasonably proportionate and were in excess of what was reasonable to control the deceased or protect the accused or others.

Criminal Law Consolidation Act 1935 (SA) s13, s15, s15A; Juries Act 1927 (SA) s7(1), referred to.
R v Edwards [2007] SASC 202; Royall v The Queen (1990) 172 CLR 378; Campbell v The Queen [1981] WAR 286; R v Apostilides (1984) 154 CLR 563; Wilson v The Queen (1991-1992) 174 CLR 313; R v Lavender (2005) 222 CLR 67; Nydam v R [1977] VR 430; Cheney v The Queen (1991) 28 FCR 103; Sheldon v Sun Alliance Australia Ltd (1989) 53 SASR 97; R v Wills [1983] 2 VR 201, applied.
New South Wales Sugar Milling Co-operative Ltd v EPA (1992) 59 A Crim R 6; Arulthilakan v The Queen (2003) 78 ALJR 257; Dyers v The Queen (2002) 210 CLR 285; R v R, R & R, LJ [2008] SASC 35; R v Adomako [1995] 1 AC 171; R v Stone and Dobinson 1 QB 354; Insurance Commissioner v Joyce (1948) 77 CLR 39, considered.

R v EDWARDS
[2008] SASC 303

1.           Introduction

2.           Layout of the Ramsgate Hotel

3.           Security and access to the hotel

4.           Trial process and evidence before me

5.           Attire of security staff and patrons

The patrons
The security officers

6.           Overall observation on the evidence

7.           The Video and DVD exhibits

8.           Findings

9.           Events leading up to the incident

10.          Conduct in the gaming room

Findings beyond reasonable doubt on conduct in the gaming room

11.          Different types of headlock

12.          How the altercation started: 20:41:11 – 20:41:22

Findings beyond reasonable doubt on how the altercation started

13.          Continuation of the altercation from 20:41:23 to 20:42:03

Findings beyond reasonable doubt on continuation of altercation

14.          Edwards’ connection with Esposito from 20:42:03 to 20:51:02

Edwards with Esposito on southern wall - 20:42:03 – 20:43:26

Findings beyond reasonable doubt from 20:42:03 to 20:43:26

Edwards holding Esposito on northern wall 20:43:26 – 20:49:24

Between 20:43:26 – 20:43:50 – Prior to the four positions
Findings beyond reasonable doubt – Prior to the four positions

The first position: 20:43:50 – 20:45:05

Findings beyond reasonable doubt on first position

The second position: 20:45:05 – 20:46:17

Findings beyond reasonable doubt on second position

The third position: 20:46:17 – 20:48:19

Findings beyond reasonable doubt on third position

The fourth position: 20:48:19 – 20:49:24

Findings beyond reasonable doubt on fourth position

Additional evidence on the holds of Edwards

Summary of findings of the holds used by Edwards on the northern wall

Observations of the police officers in relation to Mills and Reid

Findings beyond reasonable doubt on conduct of Mills and Reid

15.          The state of awareness of Edwards

Findings beyond reasonable doubt on the awareness of Edwards

16.          Direction given to Edwards

Findings beyond reasonable doubt as to direction given to Edwards

17.          Comments made by bystanders

Findings beyond reasonable doubt in relation to comments made by bystanders

18.          The resuscitation of Esposito

Findings beyond reasonable doubt on the resuscitation of Esposito

19.          Cause of death

Findings beyond reasonable doubt on the cause of death

20.          Injuries received by Esposito

21.          Propensity evidence regarding Mills and Esposito

22.          Failure of the prosecution to call Lisa Rye

23.          Manslaughter by unlawful and dangerous act

Age, experience and knowledge of the accused
Whether the acts were performed to assist in the lawful arrest of Esposito
Whether the acts were performed for the purpose of self-defence or defending others

24.          Manslaughter by criminal negligence

Duty of care
Breach of duty of care
Contributory negligence

25.          Summary

SCHEDULE OF WITNESSES

Criminal

LAYTON J

1.     Introduction

1. The accused is charged on Information with manslaughter contrary to s 13 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). The particulars are that the accused unlawfully killed Domenic Jason Esposito on 27 February 2005 at Henley Beach. The accused pleaded not guilty to the charge on 16 January 2006.

2. This was the second trial on the same Information.  On 8 December 2006 the accused was convicted of manslaughter by majority verdict of a jury.  Further to being sentenced in March 2007, the accused appealed against his conviction and sentence on the grounds that the trial Judge’s failure to declare a mistrial had resulted in a miscarriage of justice.  The main issue raised on appeal was whether the Judge should have declared a mistrial upon discovery that the jury had been presented with inaccurate evidence as to the timing of certain events.  The prosecution had proceeded with the case on the assumption that the time depicted on the hotel’s security camera footage (“Ramsgate time”) was the same as, or synchronised with, the time on the police communication records (“real time”).  Towards the conclusion of the trial, it was discovered that this assumption was erroneous; real time was four minutes ahead of Ramsgate time.  On 8 June 2007, the Court of Criminal Appeal, finding that there was a real risk that the jury assessed the case on a false basis, allowed the appeal, set aside the conviction, and ordered a retrial of the Information.[1]

   [1]    R v Edwards [2007] SASC 202.

3. The accused elected for a retrial by judge alone pursuant to s 7(1) of the Juries Act1927 (SA) and the matter then proceeded before me. I did not read any of the evidence nor the summing up in relation to the first trial, save that evidence which was tendered before me by consent between the parties. I am deciding this case solely on the evidence which has been adduced before me with the arguments that have been presented to me by prosecution and defence counsel.

4. The charge against the accused (“Edwards”) arose from the death of Domenic Jason Esposito (“Esposito”) at the Ramsgate Hotel at Henley Beach on 27 February 2005.  Edwards was employed as a security officer at the Ramsgate Hotel (“the hotel”).  On the night of his death, Esposito was at the hotel drinking with his two friends, Kane Reid (“Reid”) and Wade Mills (“Mills”).  I will refer to all three men collectively as “the three patrons”.  The three patrons were told by security officers to leave the premises on account of their behaviour in the gaming room.  In the process of being escorted out of the hotel, an altercation broke out between the three patrons and security officers.

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.

9. The arguments of the defence and prosecution are further explored later in these reasons.

10. Before turning to the events which occurred on the evening of 27 February 2005, it is necessary to set the scene.

    2.     Layout of the Ramsgate Hotel

11. The public areas of the hotel are divided into three main sections: the front bar, the gaming room and the bistro.  The front bar occupies almost the entire northern side of the hotel.  The gaming room is situated in the eastern end of the hotel, and the bistro in the south.  There are six entrances to the hotel including one on the western side of the hotel on Seaview Road (“the front door”); one on the corner of Seaview Road and Main Street (“the main door”); and one automatic door on the eastern side of the hotel leading into the gaming room.

12. The front door leads into a foyer approximately 2.4 metres wide and 11 metres long.  This is the space in which the altercation took place.  The foyer is the common entrance to the gaming room at the eastern end and also provides an entrance to the front bar through a door in the northern wall.  The door into the front bar also leads to the toilets and, for convenience, I will refer to this door as “the toilet door”.  The bistro can be entered from the foyer through glassed French doors on the southern wall (“the bistro doors”).  Immediately opposite the bistro doors, on the northern side of the foyer, is an alcove containing an ATM.  Further east, on the northern side of the foyer, approximately 8 to 9 metres from the front door, is a staircase.

13. It is important to note that the initial altercation took place in a very confined area at the western end of the foyer.  The space is less than 2.4 metres square, which is further confined by a hallstand on the southern side and a cupboard which is opposite, on the northern side.

14. The layout of the gaming room is depicted in photographs 32-37 of Exhibit P7. Poker machines are located through the middle and eastern areas of the room.  A number of tables with round tub chairs had been placed in the western area of the room to create a gaming lounge.  The tub chairs were in slightly different positions on 27 February 2005 than shown in the photographs.  On the north side of the gaming room there is the gaming bar, which extends from the north-west corner of the room along the northern wall and is curved at the eastern end.

15. Security cameras have been placed throughout the hotel.  There are two relevant cameras for the purposes of this case.  One, known as camera 4, is positioned in the gaming room and directed towards the bar and door leading into the foyer.  The other, known as camera 9, is positioned in the foyer at the foot of the staircase near the ATM, about 2.6 metres from the floor, pointing in a south-westerly direction. This camera captures the area west of the staircase, up along the southern wall just west of the bistro doors, past a hallstand and towards the south-western corner.  The camera also includes a central and southern portion of the foyer.  On the northern side, the camera includes the area near the ATM on the northern wall, but the view to the northern areas past the ATM area is obscured by the wall section near the ATM area, and by the toilet door when it is opened.

    3.     Security and access to the hotel

16. The incident occurred on the evening of the Henley Beach Food and Wine Festival (“the festival”) on 27 February 2005.  Due to an expected increase in patrons flowing from the festival, there was one more security officer on duty at the hotel than on a regular Sunday, meaning seven security officers were on duty that night. This allowed for six security officers on duty at any one time, with an extra security officer available to cover for meal breaks which were staggered throughout the evening.[2]  Adam Spencer (“Spencer”), the security supervisor, was responsible for the positioning of the security officers. Three security officers were on “static posts” that evening.  Jay Phypers (“Phypers”) was positioned in the foyer and controlled the front door entry and toilet doorway as well as the ATM.  Melissa James (“James”) was positioned on the interior of the eastern gaming room door, controlling entry and exit into the gaming room from both the front bar and outside.  Edwards was positioned at the main door, controlling entry and exit into the front bar.  Other security officers, Luke Kohler (“Kohler”), Travis Pix (“Pix”), Jaie Courtney (“Courtney”) and Spencer were not positioned at any set post.  Two were generally supervising the front bar and another was floating through the gaming room.  On this night all of the security officers, save for Phypers, had regularly worked together as a team at the hotel.

    [2]    T 789.

17. As was the practice on particularly busy days the hotel was in “lockdown mode”.  This meant that, after 2pm, only two entrance doors enabled access from the outside; the main door and the automatic door on the eastern side of the hotel leading to the gaming room.[3]  The remaining doors were unable to be accessed from the outside, although doors could be opened from the inside to allow people to exit the hotel.

    [3]    T 993.

18. On the night of the incident there was also a live band playing in the front bar from approximately 5 or 6pm.[4] The overall atmosphere on the night was very noisy in the foyer and front bar.

    4.     Trial process and evidence before me

    [4]    T 793.

19. The trial was heard over 15 days.  The prosecution case commenced with a view at the hotel.  After the prosecution completed its case, the defence made an application for dismissal of the Information on the basis that there was no case to answer.  After hearing submissions from both parties,  I rejected the application and Edwards proceeded with his defence. 

20. Both parties provided me with detailed written submissions prior to and on completion of the trial.  After having the opportunity to view the security camera footage on the Digital Video Recorder (“DVR”) and the DVD within my own chambers, I wrote to counsel for both parties on 8 August 2008 to raise a number of issues arising from my detailed viewing.  I received further written submissions from the prosecution and defence on 8 and 9 October 2008 respectively.

21. The evidence before me includes an agreed set of facts; the DVR which I will hereafter refer to as “the video”; a DVD recording of the video; photographs of the hotel, Esposito and security staff; floor plans of the hotel; police communication records; and a schedule and diagram of injuries of Esposito found at autopsy.  Thirty-eight witnesses, including Edwards, gave oral evidence at the trial. In addition, extracts of transcript from the first trial of the evidence of a further twelve witnesses were tendered by consent, as well as the statements of an additional five witnesses.  A total of 55 witnesses provided evidence.  For convenience, I have named the witnesses and have divided them into a number of categories.  This schedule is annexed to these reasons.

22. Counsel for the prosecution and defence also collaborated in producing a time chart of movements captured by camera 9 and tendered the chart as agreed evidence (Exhibit P50). The time chart lists Ramsgate time against the equivalent real time and describes the actions of named individuals that can be seen on the video at precise times. The chart is detailed and has greatly assisted my findings, but in many instances there were additional features which I identified on a detailed viewing of the video. There are also some features which in my view differ from those agreed by the parties.

    5.     Attire of security staff and patrons

23. The clothing of each person is particularly important as a means of identification in the video footage.  For this reason, it is necessary for me to address the attire of the most relevant people involved in the incident.  I list below the clothing worn by each person as they appear on the video, and also as they appear in some photographs.

    The patrons

    ·Esposito -             Pale blue tank top, grey, white and blue board shorts and sandals/thongs.

    ·Reid -  White short-sleeved shirt with thin blue pinstripes, shorts and black sandals with red soles.[5]

    ·Mills -                   A brown t-shirt in the body, with lighter front and sleeves, shorts and thongs.

    [5]    Exhibit P5 (photograph 12); T 169.

    The security officers

    ·Edwards -              Beige pants, black shirt, black shoes.

    ·Phypers -               Beige pants, dark shirt, black shoes.

    ·Courtney -             Beige pants, light shirt.

    ·Kohler -                Black pants, light shirt.

    ·Pix -  Black pants with a lighter coloured belt, black shirt, black shoes.

    ·Spencer -               Black shirt, beige pants.

    ·James -                  Jeans and pale shirt.

1. All security officers were required to wear a security identification badge on their shirt.  Some wore it pinned to their left breast, others to their right.   Edwards wore his on the right.

   6.     Overall observation on the evidence

2. There were 34 witnesses, including Edwards, who provided oral evidence as to the conduct of the three patrons and the actions of the security officers on the night of the incident.  These witnesses were endeavouring to give evidence about an incident which took place more than three years ago.  Many of them had given earlier statements to the police and they had also given evidence, being both examined and cross-examined, at the earlier trial.  The topic upon which they were giving their evidence was limited to a time span of about ten minutes, and it involved the actions of many people involved in a dramatic and fast-paced altercation in the limited space of the foyer.  The action directly involved 11 people at various points of time in different parts of the foyer.  The reliability of the evidence of the 34 witnesses is dependent on many factors.  The witnesses’ ability to notice and remember detail, their consumption of alcohol, where they were positioned, and where and when they were looking at any given point of time, varied.  In addition, some of the witnesses had prior connections and associations with either Esposito, the staff at the hotel, or security officers.  Others had interests of a personal nature as to the outcome of the trial and some witnesses appeared to have made assumptions or formed views as to attribution of blame.  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.

3. 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.

4. 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. 

5. 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.  I pause at this point to address the video and the DVD. 

   7.     The Video and DVD exhibits

6. The DVR was a centralised computer database which stored the video footage of the 16 different security cameras placed throughout the hotel.[6]  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.[7]  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.

   [6]    T 32.

   [7]    Ibid.

7. The actual date and time was impregnated onto the video, displaying the hour, minute and second in a digital 24 hour format. As I referred to earlier, in the context of the Court of Criminal Appeal decision, the time shown on the video (the Ramsgate time) was in fact four minutes behind real time according to police communication records. Throughout my reasons when I refer to the precise timing of events I am citing the Ramsgate time depicted on the video.

8. The DVD (Exhibit P18) of the security camera footage does not have the time superimposed on the image, but contained superimposed names agreed by the parties to assist with the identification of witnesses.

9. 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.

10. 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.

    8.     Findings

11. In setting out my findings, I have divided the events of the night into distinct sections. I will initially discuss the evidence before me concerning each section and make my own observations on the evidence, before then setting out my findings of which I am satisfied beyond reasonable doubt. This process has allowed me greater scope to discuss in a coherent fashion the complicated events which occurred.

    9.     Events leading up to the incident

12. Reid and Esposito arrived at the festival together at approximately 5pm.  They had been in each other’s company prior to arriving at the festival and they had not consumed any alcohol.[8]  They had their first drink at approximately 5:15pm.[9]  They did not eat anything at the festival.[10]

    [8]    T 127.

    [9]    T 128.

    [10]   Ibid.

13. Reid and Esposito met up with Mills at the festival at approximately 6pm.[11] Mills had consumed a few beers and probably two or three glasses of wine before meeting with the other two.[12]  During the evening Mills left the company of Reid and Esposito to meet his girlfriend and Reid’s cousin for a short time.[13]

    [11]   T 211.

    [12]   Ibid.

    [13]   T 212.

14. Reid and Esposito drank three wines and one full-strength beer.[14]  The festival began to wind up at approximately 8pm.  By that time they had again joined up with Mills and decided to move to the wine bar, Zoots.[15]  That was full, so they went across to the hotel.[16]  There was a line-up to enter the front bar of the hotel.  They decided to enter the hotel through the gaming room at the eastern side of the hotel.[17]

    10.    Conduct in the gaming room

    [14]   T 128.

    [15]   T 127.

    [16]   T 129.

    [17]   Ibid.

15. Upon arriving in the gaming room, Esposito approached the bar and ordered three vodka and pineapple juice drinks.[18]  They were served by Lisa Rye (“Rye”), a gaming room bartender.  The three patrons moved to the eastern end of the bar and stood drinking and talking.  Ten minutes later, after finishing their drinks, a second round of vodka and pineapple juice was ordered.[19]

    [18]   T 214.

    [19]   T 131; T 216.

16. According to Benjamin Andrew Mattsson (“Mattsson”), a gaming room bartender, the three patrons hovered around the eastern end of the bar and also moved around the gaming room.[20]  Reid and Esposito are seen on the video moving around the gaming machines.  Not long after serving the patrons, Mattsson left for a meal break.  He said that prior to leaving, their behaviour had not drawn his attention.[21]

    [20]   Exhibit P27, 544.

    [21]   Ibid.

17. Mills drank faster than the other two and finished his drink in a few minutes.[22]  He then left the gaming room and went outside through the foyer in order to find an ATM, as the hotel ATM did not accept Visa cards.  He did not tell Reid and Esposito, who remained talking at the bar.[23]  Mills left at 20:36:59 and was not seen again on the video until his return at around 20:40:00. 

    [22]   T 216.

    [23]   T 217.

18. During Mills’ absence, Reid described Esposito and himself as “mucking around, talking to each other”.  He agreed he was “a little bit tipsy”, and that they were speaking a little louder than a normal tone of voice, with occasional swearing.[24]  Reid said that they were getting bored at the hotel, so decided to meet up with Esposito’s sisters at the Pier Hotel at Glenelg.[25]

    [24]   T 131-132.

    [25]   T 132.

19. A number of witnesses, consisting of both staff and patrons, gave evidence regarding the behaviour of the three patrons in the gaming room. Amanda Jenkins (“Jenkins”), a patron in the gaming room, described them as being “loud”, “a little disorderly” and “excessive” in their behaviour.[26]  She said they gave the impression that they were drunk.[27] Lisa Mihatsch (“Mihatsch”), another patron, said that two of the patrons were a “little rowdy”.  She recalled them having their arms around each other, joking around and being quite loud.  In her view, they stood out from others in the gaming room.[28]

    [26]   Exhibit P30, 630.

    [27]   Ibid.

    [28]   T 299.

20. James, the security officer positioned in the gaming room, gave evidence that the three patrons were talking and swearing loudly.  She said that when other people walked past they would grow louder and “leer” towards them.[29]  Alan McDonald (“McDonald”), a staff member of the hotel, said that the three patrons were loud, spilling their drinks and appeared to have lost some coordination.[30]  McDonald also instanced an example of a comment apparently directed to an elderly female gaming patron.[31]

    [29]   T 1069.

    [30]   Exhibit P26, 551.

    [31]   Exhibit P26, 555.

21. Reid disputed that they were spilling drinks and denied they had approached patrons.[32]

    [32]   T 156-157.

22. In contrast to the evidence outlined above, other patrons in the gaming room did not notice anything unusual about the behaviour of the three men.  Kyla Daly (“Daly”) said that her attention was not drawn to them in any way until they were leaving.[33] Other patrons, including Kelly O’Loughlin (“O’Loughlin”) and Karen Penhall (“Penhall”), did not notice the presence of the three patrons until they saw them standing with security officers later on.[34]

    [33]   T 346.

    [34]   Exhibit P28, 612; Exhibit P29, 621.

23. McDonald and Rye consulted each other and decided that someone needed to speak to Reid and Esposito.  Rye did not give evidence at the trial, a topic which I discuss later in these reasons.  Rye approached Reid and Esposito.  This can be seen on the video.  McDonald did not hear what she said to them.[35]

    [35]   Exhibit P26, 552.

24. The evidence of Reid was that Rye said, “If you don’t tone it down a bit, you’re going to have to [fuck] off out of here”.[36]  He said this comment appeared to be directed predominantly towards Esposito. According to Reid, Esposito replied in a calm but somewhat sarcastic manner saying, “You don’t have to say it to us like that.  You just have to tell us to leave”.[37]  McDonald did not hear the conversation, but was aware of there being some form of conflict.[38]  Rye is seen on the video to walk towards the western end of the bar and approach Pix.  Penhall’s evidence was that she heard one of the patrons say to Rye, as she was walking towards the front bar, words to the effect of “It’s not over yet”, including the word “bitch”.[39]

    [36]   T 132.

    [37]   T 133.

    [38]   Exhibit P26, 553.

    [39]   Exhibit P29, 622.

25. In the meantime, McDonald approached Reid and Esposito, as seen on the video at 20:38:24.  He said he tried to calm them down and suggested that they move towards the seating area of the gaming room.[40]  According to McDonald, one of the men said, “That fucking bitch told me to sit down”. McDonald said that they were “slightly angry” and his response was, “Just calm down guys”.[41] McDonald then served another customer at the bar. Reid agreed that a barman told him to tone it down a bit and that he and Esposito were asking him, “What is her problem, telling us to fuck off out of here.”[42]

    [40]   Exhibit P26, 553.

    [41]   Exhibit P26, 553.

    [42]   T 149.

26. After that, Pix approached Reid and Esposito at 20:39:11 while they were standing at the eastern end of the bar. Another security officer, Phypers, also joined Pix.  Pix gave evidence that Reid and Esposito were initially argumentative, claiming that they had been victimised by bar staff and had been spoken to unjustly.[43]  Pix said he asked them to move away from the bar so that he could continue the discussion over near the seated area.  He said that Reid and Esposito complied with that request.[44]  Pix said he explained to them that as a consequence of their behaviour, they would no longer be able to remain in the venue and he asked them to leave.[45]  He said that Reid and Esposito again raised the issue of the bar staff, but then started to leave as requested.[46]  It was Daly’s evidence that one of the men yelled out to Rye that it was her fault that they had to leave.[47] Reid’s evidence was broadly consistent with that of Pix.  Reid said that it was anticipated that they would be approached by security officers and asked to leave after he had seen Rye speak to one of them.  He said that he did not object, as they were planning to leave anyway.[48]

    [43]   T 881.

    [44]   Ibid.

    [45]   Ibid.

    [46]   T 883.

    [47]   T 347.

    [48]   T 162.

27. At 20:39:31 Reid and Esposito, as well as Pix and Phypers, are seen to pause near the entrance to the foyer.  Reid’s evidence was that Esposito at that time had told the security officers that he was going to finish his drink, and he did so.[49]  Reid described the atmosphere as being very relaxed at this point. However, O’Loughlin’s evidence was that Esposito said, “I want to finish my effing drink” and slammed his drink on the counter.[50] This was the first time O’Loughlin’s attention was drawn to the three patrons.  She had not noticed any prior inappropriate conduct.[51]

    [49]   T 150.

    [50]   Exhibit P28, 612.

    [51]   Ibid.

28. Edwards gave evidence that he was standing at the office door located at the western end of the bar in the gaming room when Rye came to speak to him.[52]  Edwards said he had noticed four people in the gaming room, who he thought were Pix and three other patrons.  He agreed that on the video it showed Pix and Phypers with two patrons.[53]  Edwards said he had heard the loud voices of the patrons above the noises of the gaming room.[54]

    [52]   T 798.

    [53]   T 799-800.

    [54]   T 800.

29. At 20:40:19 Edwards is seen on the video to approach the group of four, standing roughly a metre away.  At 20:40:36 he is seen to move a chair from their vicinity.  Reid gave evidence that when he saw Edwards moving the furniture, it made him feel anxious.  It suggested to him that they were going to get “beaten up”.  This caused him to say, “What are you doing, dickhead, moving furniture?”[55]  Reid said that the other two security officers were still being calm in their manner, contrary to what he perceived Edwards to be.[56]

    [55]   T 134.

    [56]   T 164.

30. Edwards did not remember moving the chair, but could see on the video that he had done it.[57]  He said that his action was not intended to be confrontational, he simply wanted to get closer to the group.[58]

    [57]   T 800.

    [58]   Ibid.

31. Mills then entered from the eastern door of the gaming room.  His evidence was that as he approached the group he heard one of the security officers say, “Let’s go out the back”, and gesture with one hand raised and the thumb extended over his shoulder.[59]  Mills gave evidence that he responded, “No, lets go out the front”.[60]  He said that one of the security officers agreed, and the group then proceeded to move through to the foyer.  Edwards, in his evidence, did not recall saying anything, but he thought he may have gestured with his hands towards the doors of the gaming room as, in his view, this would have been a more desirable exit route with less clutter, and the men could walk directly out into the street.  In his view, the alternative exit through the foyer and front door, although it was closer, was narrower and possibly cluttered with people using the ATM.[61]

    [59]   T 221.

    [60]   Ibid.

    [61]   T 801-802.

32. Mills was cross-examined as to why he suggested going through the foyer and out through the front door.  Mills said that he wanted to go out the front because it was the closest exit, but also admitted that he did not want to go out the gaming room doors because he was worried he might be “getting set up and bashed up”.[62]  At the same time, Mills made the point that he was not being evicted from the hotel, Reid and Esposito were.[63]  He was just happy to leave on the basis that, “If they don’t want us there I’m happy to go”.[64]

    [62]   T 255.

    [63]   Ibid.

    [64]   Ibid.

33. The video also shows Kohler entering the gaming room from the east and approaching the three patrons and the three security officers.

34. At 20:41:10 the group is seen on the gaming room cameras to move through the foyer doors.

    Findings beyond reasonable doubt on conduct in the gaming room

35. Having considered this evidence, in combination with the alcohol reading revealed by Reid, Mills and Esposito,[65] I am satisfied beyond reasonable doubt as to the following.

    [65]   According to expert witness Dr Geoffrey Fraser White, Reid’s blood alcohol level at about the time of the incident would have been approximately 0.113%, Mills 0.9-1% and Esposito 0.107%  (see T 716-717). In addition, Esposito had 17 micrograms of THC in his blood  (see Exhibit P48, paragraph [14]).         

36. The conduct of the three patrons, particularly Reid and Esposito during the absence of Mills, was influenced by their consumption of alcohol.  Their conduct included loud talking and swearing.  I am not satisfied that they approached any patrons, as alleged.  The three patrons also drew attention to themselves by roaming from time to time around the general area of the gaming room.  Their behaviour stood out because this was taking place in a gaming room with a different clientele than, for example, the front bar, which would have been crowded with younger, noisier patrons.  The quieter atmosphere of the gaming room, albeit with the noise of machines, brought their conduct to the attention of patrons and staff. 

37. While I am not satisfied that the language used by Rye was as stated by Reid, I am satisfied that her manner was abrasive and that Reid and Esposito responded by verbally protesting and swearing about what they perceived to be her unjust request to leave.  Their response led to Rye seeking the assistance of security officers to speak with them and have them removed from the premises.  Reid and Esposito did not resist the request made by Pix for them to leave.  Although they loudly protested about it being unfair, they were prepared to leave and proceeded to do so accompanied initially by Pix and Phypers.  Esposito demanded that he finish his drink before leaving. Edwards gestured that they should leave through the eastern door of the gaming room. Mills had an unreasonably sinister interpretation of that suggestion, as he thought that the security officers would set them up and that they would then be bashed up. Mills suggested instead that they exit through the foyer and out the front door, which they proceeded to do.  Reid also had an unnecessarily sinister interpretation of Edwards moving a chair out of the way.  While the moving of the chair was not necessary and could have been seen to be provocative in the circumstances, the response of Reid was out of proportion and his language was inappropriate.

38. Contrary to their express evidence, both Reid and Mills, as they were entering the foyer, were anxious and on edge about the potential, as they saw it, to get beaten up.  I am satisfied that the security officers were also tense and on edge because of Rye’s report of earlier disorderly behaviour that was assumed to be linked to alcohol consumption.  There was, therefore, tension on both sides as the three patrons and the four security officers, Phypers, Pix, Edwards and Kohler, moved into the foyer.  This set the scene for what later occurred in the foyer.

1. I also find that at the time when the three patrons and the four security officers left the foyer, there was no plan by the security officers for the three patrons to be held by the security officers or arrested.  Instead, they were to be escorted from the premises.

   11.    Different types of headlock

2. Before continuing with the conduct which occurred in the foyer, it is necessary to discuss the topic of the headlocks in order to better understand the evidence which follows.

3. There was a considerable amount of evidence given by a number of witnesses as to their understanding of what was meant by a “headlock”.  In essence, the word “headlock” was used by various witnesses to describe different holds whereby a person could restrain and control another person using arms gripped around the person’s neck area.  The various holds described were a “sleeper hold” or “carotid hold”; a “bar hold” or “choker hold”; and a “chin lock” or “chin hold”.[66] 

   [66]   The expressions “chin lock” or “chin hold” were expressions used only by Spencer and Edwards.

4. I am satisfied of the facts in paragraphs [65] to [69] hereof beyond reasonable doubt. A “bar hold” or “choker hold” is where an arm of the person is held across the throat of the subject from behind, compressing the throat and blocking the airway.  The arm placed across the throat may be held in position either by holding on to that arm with the other arm, or the two arms may be parallel to each other with the neck in between by holding the front and back of the person’s neck.[67]  The effect of a “bar hold” or “choker hold” is to cut off air going into the lungs.[68]  For ease of reference I will refer to this hold as a “choker hold”.

   [67]   T 634, 670 (Gilbert); T 692, 699-700 (Marks); T 709 (Kuerschner).

   [68]   T 670 (Gilbert); T 692 (Marks).

5. A “sleeper hold” or “carotid hold” is where the neck of the subject is held from behind in the crook of the elbow with the bicep applying pressure on one side of the neck and the lower arm placing pressure on the other side of the neck.[69]  This hold places pressure on the jugular veins and/or carotid arteries on each side of the neck.  The effect is to restrict blood flow to the head.[70]  For ease of reference I will refer to this hold as a “sleeper hold”.

   [69]   T 646-647 (Gilbert); T 693, 700-702 (Marks); T 709 (Kuerschner).

   [70]   T 646-647 (Gilbert); T 693 (Marks).

6. Both the choker and sleeper holds, by different means, cause oxygen deprivation followed by asphyxia, unconsciousness and death if the hold is maintained.[71]

   [71]   T 653-655 (Gilbert).

7. In the case of a “chin lock” or “chin hold” this, as the description suggests, is where a hold similar to a sleeper hold is used, but the chin instead of the neck is held in the crook of the elbow by the upper arm and forearm of one arm.  Unlike either a choker hold or a sleeper hold, this hold by its nature would not constrict the airway or blood flow.  For ease of reference I will refer to this hold as a “chin hold”.

8. Although these holds were specifically identified during evidence, it does not exclude a blurring of the application of holds in the course of a struggle so that all three may be involved at various times.  The important common feature of the first two holds is that they involve the control and restraint of a person by constricting the neck area and depriving the person of vital oxygen to maintain life.  The potential for harm to be inflicted on the person on whom the holds are applied depends on the pressure applied and the period of application.[72]

   [72]   T 653-655 (Gilbert).

9. I will now discuss the events which occurred in the foyer during the following stages: the commencement of the altercation (described by most witnesses as a fight); its continuation; and Edwards’ actions in relation to Esposito from the first connection until Esposito was rolled over and attempts were made to resuscitate him. I do so relying primarily on the video as well as witnesses’ evidence. I use the present tense to describe the actions. I will set out my findings of which I am satisfied beyond reasonable doubt for each stage and, at the end, summarise my overall findings as to the actions of Edwards.

   12.    How the altercation started: 20:41:11 – 20:41:22

10. How the altercation broke out is relevant to whether or not the subsequent actions of Edwards in endeavouring to hold Esposito until the police arrived is or is not unlawful, as discussed later in these reasons. 

11. A number of witnesses gave evidence on this topic, but none were entirely reliable. The best evidence was the video. It is necessary to canvass the video evidence in detail in order to ascertain what occurred and also to assess the reliability and credibility of the various witnesses as to how the altercation began. I have set out my understanding of what the video discloses in considerable detail.

12. At 20:41:11 Mills is the first of the three patrons to enter the foyer.  He walks west on the southern side of the foyer, past a number of other patrons.  Near the ATM he moves to his right and turns to face Timothy Inkster (“Inkster”), a patron, placing his right hand on Inkster’s right arm and giving him a nudge.  Mills thought that Inkster was the person who had earlier rudely gestured to him and refused him entrance to the hotel.[73]   At the same time as nudging him, Mills speaks to Inkster.  There were various versions of what was said.[74]  It is not necessary to make a specific finding as to what was said.  Inkster admitted he didn’t realise Mills had pushed him until he had seen the security video.  It was not an aggressive push.  Rather, it was a passing demonstration by Mills, somewhat influenced by alcohol, to draw Inkster’s attention to his presence inside the hotel.

    [73]   Mills gave evidence that a man talking with two women had refused to open the front door to let him in, and had instead lifted his top and exposed some pubic hair (see T 218-219, T 222-223).

    [74]   Inkster’s evidence was that Mills said, “Do you want to go cunt” (see T 405-406).  Harvey’s evidence was that Mills said, “What are you looking at.  Do you want to go?” (see T 374).

13. A few seconds later, at 20:41:14, Esposito enters the foyer from the east.  He puts his hand on the front of Mills’ chest, appearing to try to move Mills on.

14. Reid enters the foyer from the east at 20:41:15, a short distance behind Esposito.  Phypers is slightly to the right of Reid with his right arm raised, but not touching and then lowers it. Reid moves slightly ahead of Phypers who then comes in behind him.   Reid looks at Inkster as he passes him.

15. In the meantime, Mills can be seen to be turning from the east to face in a more northerly direction.  Esposito still has his hand up on Mills, trying to move him forwards.  Both of them move out of view to the west.

16. Between 20:41:17 to 20:41:18, the back of Reid can initially be seen to be moving forward and facing west.  Phypers is behind him with his hands on the centre of Reid’s back at about shoulder blade level.  Kohler is behind Phypers, initially with his hands on Phypers’ arm or shoulder.  A portion of Edwards can be seen to the left of Kohler and up against the southern wall. Phypers’ hands then lower behind Reid’s back. His right arm is crooked at the elbow with his forearm raised in front.  His left arm cannot be seen.  Edwards moves along the southern wall so that he is a little ahead of Kohler, whose arms also lower.

17. At  20:41:18, the following action is seen.   Reid moves further west and is the last patron to leave the screen. Phypers’ is still seen following behind Reid. His body is largely masked by Inkster, who is looking south towards Edwards.  Edwards is still on the southern wall, but has now put his hands up.  Kohler, who was slightly behind Edwards, moves quickly past Edwards, with his hands up at shoulder blade level.  These actions appear to be a response to something occurring at the western end of the foyer.

18. At the western end, Phypers’ upper body can still be seen, about level with the hallstand.  He is facing south-wester, with his right leg forward.  His hands cannot be seen.  He appears to have come back a little towards the east, as more of his head and body is visible than previously. 

19. Kohler moves to the left side of Phypers with his hands up, his right hand on Phypers’ left shoulder.  Edwards is behind Kohler, but he remains on the southern wall.  Edwards appears to have his right hand across to the place where his earpiece sits on his left shoulder.  This is when he speaks into it to indicate security are required in the hallway.[75]  At this point, Inkster is facing east and is not looking at the action behind him.

    [75]   James says she heard a loud bang and then heard “ATM corridor” transmitted over her radio (see T 1071). Edwards gave evidence that it looked like he was reaching for his radio at this moment (see T 811).

20. Therefore, at 20:41:18 the altercation has commenced. Neither Reid, Mills nor Esposito can be seen on the screen.  The only security officer directly involved with any patron at the commencement is Phypers.  Phypers was the first of the security officers and he was directly behind Reid.  Kohler is still behind Phypers, but is moving up quickly, and Edwards is still on the southern wall.

21. At 20:41:19 the left side of Phypers is seen just behind the partially open toilet door on the northern side.  Kohler’s body can also be seen more to the southern side of the hallway, facing west.  Edwards is behind Kohler, still with his right hand near the microphone, and his left hand grabs the back of Kohler’s shirt at about waist level. Kohler’s right leg then bends and he turns to face in a more northerly direction with both his legs bent.   Pix enters from the east and moves his hands up behind Edwards.

22. At 20:41:20 Kohler has now moved in a north-westerly direction to where Phypers was.  After Kohler moves, the left leg of a person with calf length dark pants and a black sandal can be seen towards the southern side of the hallway.  As more of the leg is revealed, it turns in an easterly direction.  With the knowledge of the clothing and footwear worn by each the three patrons, this person is likely to be Reid, but I cannot be satisfied of this beyond reasonable doubt.

23. At the same time, Edwards has now moved so that his head is facing west, his torso is facing north and his right leg is behind him and in a braced position.  His hands are held up and his right arm has moved forward.  When viewed at normal speed, Edwards appears to be trying to retain the action in front of him using his body and hands.  Pix is behind Edwards and moves forwards. 

24. Kohler, who had been moving towards the northern side of the wall near where Phypers had been, suddenly changes direction and can be seen with his left leg and upper body returning towards the south.  At this time the upper part of the body and legs of Phypers can be seen behind the open toilet door on the northern side. 

25. Between 20:41:20 and 20:41:22 the following action occurs.  Kohler dramatically changes his position and he swivels around to face an easterly direction over on the southern side, near where the sandalled foot had been positioned.  I note at this point that there is evidence, which I refer to later in my reasons, of Reid and Kohler in an altercation with each other in the north-western corner.

26. At 20:41:20 Pix commences the first of two kicks from the southern wall, towards the general direction where the sandalled foot was seen.  When kicking out, he moves between the hallstand and Edwards.

27. Edwards has his hands up and his right leg slightly raised.  His head is still facing west, and his body still facing north.  Edwards now appears to be pushing forwards in a westerly direction in the area where Pix is directing his kicks.  Edwards moves back and forth vigorously, moving a metre or so each time.  Edwards moves briefly off screen in a south-westerly direction and then returns into a braced position.  His arms are up and his right leg straightens.  This is the first time that Edwards seems to be involved more directly and actively in the altercation.  Kohler is ahead of Edwards.  Pix still has his left arm braced against the southern wall, while his right hand and right leg are moving out.

28. Meanwhile, on the northern side of the hallway near the toilet door, Phypers’ left leg and upper body reappear at 20:41:21.  He remains in that general vicinity until 20:41:22 when the toilet door opens a little more and it obstructs the view of him.

29. Taking stock at this point, it appears that all four security officers, Phypers, Kohler, Pix and Edwards, are now involved in the altercation.  One area of action is on the southern central area of the foyer, near the centre to western end of the hallstand, involving Kohler, Pix and Edwards.  The second area of action appears to be near to Phypers, more to the northern side of the foyer.  Esposito,  Mills and Reid cannot be seen or positively identified. 

30. I turn now to consider the evidence given by witnesses who say they saw the start of the altercation.  I will first discuss the evidence of independent witnesses not involved directly in the altercation.  

31. Dusan Jurkovic (“Jurkovic”) was present in the foyer. He is seen on the video at 20:43:42 standing near the ATM.  Jurkovic said that at the time when he saw patrons and security officers come into the foyer, there was a security officer who came out first, followed by one patron, then two security officers, followed by another two patrons, each escorted by a security officer.[76]  On his evidence, there were five security officers, one of whom was at the front.  Jurkovic also says that the leading security officer, after walking west, stopped at the front door, blocking it.  The first patron who was behind him then turned around.  Two security officers then pushed into that patron.  A second patron, who was behind the three, then turned around with his hands up, as if saying, “What’s going on?  What are we supposed to do?”[77]  The second patron then hit the security officer who was behind him in the face.[78]  The second patron was not Esposito, whom he later identified as being on the southern wall in a headlock.

    [76]   T 418.

    [77]   T 419.

    [78]   T 421.

32. Although Jurkovic admitted that five security officers could not be seen on the video, he still maintained that one security officer blocked off the front door.[79]  I do not accept the evidence of Jurkovic that there was a security officer who blocked the front door.  I also reject his evidence of there being five security officers, and with the order in which he places the security officers and the patrons, and the sequence of events.

    [79]   T 443-445, 447-448.

33. Inkster was not looking at what was occurring behind him and he only turned around at about 20:41:19.  He said that when he turned around it was after he heard something happen.[80]  He said that he saw one patron throwing a lot of punches at a security officer, and the security officer “sort of covering up a bit” with his hands and forearms.[81]  His evidence was that this patron was not Esposito.[82]  He could not see whether the punches of that patron connected with the security officer.  This evidence may well be consistent with the actions of Reid, as discussed hereafter.

    [80]   T 406-407.

    [81]   T 407, 412.

    [82]   T 412.

34. The evidence of Nicolle Harvey (“Harvey”), who was with Inkster, placed Edwards behind Mills.[83]  She said that Mills went towards the door which led to the toilet and that was when the altercation started.[84]  She also agreed that in an earlier statement she had said that Edwards had put his hands in the air, trying to control Mills’ arms.[85] Harvey admitted that she was slightly affected by alcohol at the time.

    [83]   Whom she identified as being the person who pushed Inkster (see T367).

    [84]   T 367-369.

    [85]   T 379.

35. I do not accept the evidence of Harvey.  It is contrary to the video footage which shows that Edwards was not behind Mills and that all three patrons had gone past the toilet door.

36. Harvey’s friend, Cicilia Robinson (“Robinson”), gave similar evidence to Harvey.  She said that one of the patrons tried to go through the toilet door.[86]  She agreed that at the previous trial she had said that this patron had in fact opened the door.[87]  At the trial before me she gave evidence that Edwards tried to stop that patron going through the toilet door and that the patron had swung a punch at Edwards, who had also swung a punch back.[88]  I do not accept the evidence of Robinson, as it is contrary to that which is seen on the video.

    [86]   T 386.

    [87]   T 394-395.

    [88]   T 387, 395-396.

37. I now turn to the evidence given by Reid and Mills.

38. The evidence of Reid was that when they entered the foyer, there appeared to be two security officers ahead of them near the front door.[89]  He said that he knew that an incident had occurred between Mills and another patron but he did not know what it was about.  His evidence was that Mills and the patron had a few quiet words and then Mills pushed Inkster in the shoulder without force.[90]  Reid said to Mills, “Don’t worry about it, mate, just forget about it.  Let’s get out of here”.[91]  He, Reid, then led the way, as they were all just standing around at that point.  He said that Inkster and the security officers were eying them off as they started to walk.  He was certain that there was at least one security officer ahead of him, with three or four behind him.  When he was about a metre from the front door he heard a commotion and turned around to see three, maybe four, security officers on top of Esposito, hitting and punching him and holding him.[92]  He also said that Mills was involved in the altercation as well.[93]  He said he then ran back from where he was near the exit and pulled one of the security officers off Esposito, slung him into the northern wall and punched him in the face.[94]  He punched as hard as he could on one side of the security officer’s face.[95]  He said another security officer tackled him from the side and that this security officer, and the one he had punched, were on top of him and they all ended up flying into the north-western corner.[96]

    [89]   T 165.

    [90]   T 136.

    [91]   Ibid.

    [92]   T 136-137.

    [93]   T 137.

    [94]   Ibid.

    [95]   Ibid.

    [96]   T 138.

39. I reject Reid’s evidence on a number of points.  There were no security officers ahead of Mills and Esposito.  For reasons which I discuss later, there were only seven security officers on duty that night who are accounted for.  There were only four present in the foyer at this early stage, and they were all behind the three patrons.  I reject Reid’s evidence that he walked ahead of Mills and Esposito.  I also reject his evidence that at this point there were four security officers on Esposito.  There were simply not enough security officers to be involved with Esposito.  Further, Reid’s position on the video is contrary to his evidence.  Mills and Esposito were not behind him when the altercation broke out. 

40. As for Mills, his evidence was that after the incident with Inkster he moved three or four steps towards the front door.  He says he reached the front door and “pulled the door open” to let Esposito and Reid come through.[97]  At that point when he had the door open, he spun around and saw Reid wrestled past him into the north-western corner.[98]  Reid was being tackled by one or two security officers.[99]   He said he also saw Esposito being assaulted by three or four security officers.[100]  It was when he saw a security officer punch Esposito on the cheek with full force that he stepped in.[101] I reject certain aspects of this version of events.  The front door could not be pulled open – it opened outwards. There were not five security officers in the area at the time the altercation started.  There are also some problems with his description of the sequence of events.

    [97]   T 223.

    [98]   Ibid.

    [99]   T 224.

    [100] Ibid.

    [101] Ibid.

1. I come now to the evidence of Pix.  His evidence was that he entered the foyer at the rear of the other security officers.  He was focussed on what was happening behind him to the east, as he was not sure whether there were any other persons involved with the three patrons.[102]  One of the three patrons then turned around and punched one of the security officers in the face.[103]  This occurred at a point around the toilet door.[104]  He said that the punch was counter-clockwise with a right fist, causing the security officer to reel back, and then it erupted into a melee.[105]  The security officer who was punched was the one to his right, but he could not name who it was.[106]  He said that the patron who punched the security officer was not the patron with the button-up shirt (therefore I infer that Pix is not referring to Reid).[107]  He said that the other two patrons then joined in and that they were punching and wrestling with “security” (although who was not specified).[108]  He says that he was not struck at all but that one patron had tried to strike him, so he push-kicked him away.[109]

   [102] T 884.

   [103] Ibid.

   [104] Ibid.

   [105] T 886.

   [106] T 885.

   [107] T 885-886.

   [108] T 886.

   [109] Ibid.

2. In considering his evidence, Pix does not enter the screen until the last frame of 20:41:19 and, when he does, he comes in behind Edwards. Edwards is to the front and right of him.  Phypers and Kohler have already become involved in some action.  Pix’s first movements when he joins the action is a series of kicks which he delivers from the southern wall near the hallstand.  These do not give the appearance of being defensive, at least of himself.  Instead he moves forward to kick out in front of him.  Pix may well have seen a punch thrown by a patron at a security officer.  However, his evidence is not sufficiently reliable to make any confident finding that what he saw was the “first punch” thrown by a patron and that this patron was not Reid. Phypers was the security officer who was closest to the patrons when the altercation broke out and the patron directly in front of him was Reid.

3. Finally, I turn to the evidence of Edwards.  Edwards is not on video until 20:41:17, which is after the Mills exchange with Inkster had occurred at about 20:41:11.  Esposito had already moved Mills forward.  Edwards’ evidence is that he said, “Come on guys, keep walking”.[110]  Edwards said that the three patrons then continued to walk towards the front door and they did not change direction.[111]  They walked past the toilet door and then, after a few steps forward, the three patrons “turned round and … started punching” himself and the other security officers.[112]  He said he “copped” punches to his head and face, three or four “bang, bang, bang”.  He was a step or two past the toilet door when this happened and he did not know whether it was one man or two who punched him.[113]

   [110] T 805.

   [111] Ibid.

   [112] T 806.

   [113] T 807.

4. I do not accept Edwards’ evidence as to how the altercation started and, in particular, that all three patrons turned around simultaneously and started punching himself and other security officers.  Whilst I accept that the altercation between the patrons and security officers occurred within a couple of seconds, Edwards was away from the action when it broke out.  He first made a call using his microphone, and then he is seen moving forwards and backwards, retaining and then later pushing forwards towards the west.  The actions shown on the video at this early time suggest that he had not yet been hit and instead appeared to be supporting his fellow security officers in their actions with the three patrons.

5. It is apparent that none of the oral evidence given by the witnesses is wholly reliable as to what happened at the early stages of the altercation. 

6. Both Reid and Mills admitted to throwing punches at security officers.  There was no evidence as to what Esposito was doing at the commencement of the altercation.  The last action by him seen on the screen before the commencement of the altercation is when he tries to move Mills on towards the front door, when there was no security officer directly behind him.

7. Mills was likely to have been further away and closer to the front door than Esposito and then Reid. When he is last seen on the video, Mills does not appear to have completely turned around to walk west.

8. In my view, neither the security officers nor the three patrons planned to have a fight. It was clearly a tense situation before they all entered the foyer and this tension was likely to have increased after Mills stopped and nudged Inkster.[114]  It would have taken very little to trigger a reaction.

Findings beyond reasonable doubt on how the altercation started

[114] See paragraph [61].

1. I am satisfied beyond reasonable doubt as to the following matters with regard to the commencement of the altercation.  The three patrons did not all turn around simultaneously and start punching security officers, in particular Edwards. The altercation commenced between Phypers and Reid.  Thereafter Kohler joined in, followed by Pix and, later, Edwards, who was at the back of the action. Edwards was not hit at this early stage of the altercation.

2. I am unable to make any specific finding as to what Esposito did at this early stage.  I am also unable to make any finding as to what Phypers did once he left the screen at 20:41:19 until 20:41:21 and then left again at 20:41:22.  I note that later, at 20:41:36, Phypers is seen with Esposito. 

3. I am satisfied that Mills was the last of the patrons to be involved in the altercation. I reject the evidence of Mills and Reid that they first became involved in the altercation after they had seen Esposito being assaulted by three or four security officers. I note, however, at 20:41:37, about twenty seconds after the altercation started, Esposito is seen on video to be manhandled by three security officers as described hereafter.

   13.    Continuation of the altercation from 20:41:23 to 20:42:03

4. In setting the scene for this period, I note that as at 20:41:23, up on the south-western corner of the hallway, the feet and calves of two bare legs can be seen.  They are turned in a north-easterly direction and appear alongside the southern wall, between the hallstand and the front door area at the western end.  These legs remain in that position until they eventually move forward in a north-easterly direction towards the toilet door at 20:41:42, revealing that they belong to a young, unidentified woman. She exits through the toilet door at around 20:41:50.  The presence of her legs in that south-western corner, a mere six seconds after the altercation commenced, up until 20:41:42, is important for two reasons.  From the position she is seen on the screen, it is highly unlikely that any action occurs behind her, as she is likely to be backed in very close to the south-western corner.  Her position also demonstrates the range of the camera to capture that south-eastern corner at floor level.  This has implications for where people say they are positioned at various points of time.

5. At 20:41:23 Edwards is still seen with both his legs braced and his arms up.  He is positioned in the centre of the hallway, opposite the hallstand.  Again, his face and arms are turned in a westerly direction and his body faces a northerly direction.  Pix is to the left of Edwards with his left hand on the southern wall. He moves to and fro between Edwards and the hallstand and into the action which is occurring in front of himself and Edwards.

6. Over the period 20:41:23 to 20:41:26, Edwards forcefully moves forwards and backwards in a north-westerly direction.  Pix faces the same direction as Edwards.  At 20:41:26 Edwards moves rapidly in a north-westerly direction past Pix, and turns to his left. Edwards’ left hand and elbow can be seen behind and to the south of the partially open toilet door.  He disappears from view, and then returns with his left leg facing a westerly direction, still near the toilet door.  At 20:41:27 Pix kicks out horizontally towards the west from the hallstand. 

7. Between 20:41:27 to 20:41:28, Edwards’ left leg remains facing a westerly direction near the toilet door.  The light coloured pants, dark top and dark shoes of a person can be seen at the top of the screen in the centre of the hallway.  This person fits the description of Phypers.

8. Also at 20:41:28, Pix moves back from his kick in front of the hallstand.  James enters quickly from the east, pushes Pix from the back and then moves in a north-westerly direction.

9. At 20:41:29, a right leg and foot, with dark shoes and light pants, can be seen facing north on the southern side near the western end of the hallstand.   This is three fifths of a second and about one metre from where Edwards was last seen, and importantly, the legs are facing in the opposite direction.  It is unlikely that the person near the hallstand with the right leg and foot, dark shoes and pale pants, at frame 1 of 20:41:29, is Edwards, as submitted by his counsel.  In my view, it is highly likely that this is Phypers, because of where the legs of a person fitting his description were positioned in the centre of the foyer shortly before, and his actions with Esposito, as discussed later. However, this conclusion involves a fine degree of interpretation from the video and I cannot be satisfied beyond reasonable doubt that it is Phypers.

10. Also, at 20:41:29 Pix moves forward again past the hallstand and then leaves the screen.  The person with dark shoes and pale pants near the hallstand remains facing in a northerly direction.  At 20:41:30, the left and right legs of that person move forward in a westerly direction and then return to an upright position near the hallstand.  The right leg bends at the knee, and then moves up off the ground with the foot moving forwards to the north. The leg then returns back into position at 20:41:31.

11. The reason I have gone into this degree of detail is that counsel for Edwards submitted that Edwards was the person whose right leg is seen on the video from 20:41:29 to 20:41:31.  This was agreed by the prosecution in Exhibit P50.  It was further submitted by counsel for Edwards that this is when Edwards was punched in the face as inferred by the raised right leg.  Although unlikely because of the timing and position of the leg as discussed above, I cannot exclude that there is a reasonable possibility that this was Edwards.  On the assumption that this person was Edwards and the inferences which I later draw as to his connection with the patron Mills, I cannot exclude that there is a reasonable possibility that Edwards did receive a punch to the face at this time.  The person appears to go forwards and then his torso moves back and his legs appear to move up off the ground.  These actions could be consistent with the person receiving a punch, delivering a punch, or a combination of both.  The action seen is too ambiguous to make that specific finding. 

12. At 20:41:35 the upper body and legs of Pix can be identified.  Also during this time, glimpses of a pale torso can be seen.  I infer from the action seen a couple of seconds later that this is likely to be parts of Esposito.  At 20:41:35 Courtney enters from the east and moves quickly west with his right hand up, and turns to face south.  At that point Pix’s back can still be seen in the centre at the top of the screen.

13. At 20:41:36 Phyper’s light coloured pants and dark top are to the left of Pix.  Phypers and Pix move east along the southern part of the hallstand and they have a hold of Esposito.

14. From 20:41:37 to 20:41:39 Esposito is manhandled easterly along the centre of the foyer between Pix and Phypers, and later Courtney.  Esposito is swung around between them and Courtney then grabs hold of Esposito from behind in a right arm choker hold.  Courtney’s back is against the southern wall and his arm is around the front of Esposito’s neck.

15. At 20:41:40 Pix places his hand on Phypers and then he and Phypers leave quickly to go west.  This leaves Courtney with Esposito.

16. Between 20:41:40 and 20:41:52 Courtney still has his right arm across Esposito’s neck in a choker hold.  Esposito struggles and pulls on Courtney’s arm trying release the hold.  Courtney’s arm then shifts from a choker hold to a sleeper hold, meaning that Esposito is held with his neck in the crook of Courtney’s right elbow, with Courtney’s upper arm and forearm either side of Esposito’s neck. Courtney remains holding Esposito in this position until approximately 20:41:54.

17. At 20:41:54 the positions of Courtney and Esposito change. Courtney seems to have lost the hold.  Esposito is facing the southern wall and the struggle between him and Courtney moves to the centre of the foyer and back again.

18. At 20:41:56 Pix reappears from the west and pushes forcefully into Esposito and Courtney, towards the southern wall.  At 20:41:58 James returns from the west with her hands out and she too pushes out to assist Pix and Courtney in forcing Esposito towards the southern wall.

19. Between 20:41:59 and 20:42:00 Esposito is held by Courtney, Pix and  James.  This group of four move quickly towards the northern wall in the course of the struggle.  Their bodies are then mostly obstructed by patrons until, at 20:42:01, Courtney re-enters the video screen from the northern side.  He is  holding Esposito with his hands around Esposito’s head/neck area. Esposito has his head facing the ground and his body is bent over.  Pix also has a hold of Esposito somewhere near his upper body.  At this point Esposito is pushed forcibly towards the southern wall and the top portion of his head appears to connect with the wall.  I note that on autopsy he was found to have an injury at the top right-hand side of his head.[115]

    [115] Exhibit P36, 19; Exhibit P37 (paragraph [7]); Exhibit P15 (photograph 23). Dr John Gilbert’s conclusion was that this injury was caused by impact with a blunt object, possibly a wall or floor (see T 613).

20. I will pause here to now take stock of where the various security officers are during the period when Edwards cannot be seen on the video, namely from about 20:41:28[116] to 20:42:03.[117]

    [116] When Edwards is last seen near the toilet door on the northern wall.

    [117] Or from 20:41:31 to 20:42:03, if Edwards is the person who is seen near the hallstand.

21. During this period of time Kohler, Reid and James cannot be seen on the video.  However, I accept the evidence of James described hereafter that she went to assist Kohler, who was with Reid.  James assisted by pulling Reid by his shoulders away from Kohler, and Kohler then pulled Reid to the ground and held him.[118]  Later James left Kohler with Reid and went to assist Courtney and Pix at 20:41:58.  The evidence of Reid and Mills is also consistent with James being involved in holding Reid.[119]   There is a discrepancy in the evidence as to whether this was on the north-western corner or the south-western corner.

    [118] T 1073-1074.

    [119] See evidence of James at T 1073, Reid at T 170 and Mills at T 230.

22. Between 20:41:35 and 20:41:40 Pix is seen with Esposito, and he is assisted by Phypers and then later Courtney.

23. There are no other security officers in the foyer at that time. This left only one security officer: Edwards.  He is the only security officer who cannot be accounted for, and Mills is the only patron who cannot be accounted for, during that time. It is unlikely that Mills was left unattended, and he is therefore highly likely to have been alone with Edwards between 20:41:35 and 20:41:40. At 20:41:40 Pix and Phypers returned to the western end of the foyer and, at that point, Edwards potentially had the assistance of one or both of them to deal with Mills. Pix left again at 20:41:56 to assist Courtney with Esposito, leaving Phypers and Edwards at the western end to deal with Mills.

24. So how does this fit with the oral evidence?  The oral evidence is highly confusing and conflicting, but there are some aspects of the evidence of various witnesses which are consistent with and support these observations.

25. The evidence of Edwards is that after receiving a number of quick successive punches, he received one particularly forceful hit, or in his words, he was, “hit big”.[120]  He said that his “lights went out” and there was “nothing”.  He described the feeling as being similar to a time where he had been knocked unconscious playing basketball, as he couldn’t remember it happening but knew there was a period of time where there was “nothing”.  He didn’t remember the punch landing on his face, but assumed that he was hit in the right eye, as it felt numb.

    [120] T 807-808.

26. His next recollection is being in the south-western corner. He was “hunched” against the wall, crouching with his back and left shoulder against the wall,[121] and someone was punching him to the right side of his head and body. His forearms were up over his face protecting his head.[122]  He said he could not remember who it was because he had his hands in front of him and, by this stage, his vision was “pretty blurry”.[123]  He recalled being scared, as he had never been in a similar situation before, confused and stunned.[124]

    [121] T 808-809.

    [122] T 808.

    [123] T 810.

    [124] T 813.

27. Mills gave evidence that he was the last person to be taken down.[125]  Mills admitted that he punched a security officer in the face three times.[126]  This would be consistent with punching Edwards. Mills also admitted that he punched another security officer after he had swung a roundhouse kick at him.  He then backed himself into the south-west corner when two security officers approached him.  He said a short security guy with short hair punched him in the stomach.[127]  This would fit the description of Pix.  Mills also described a big security officer coming from behind him and putting him in a headlock.[128]  The same security officer later pushed him into the southern wall.[129]  This could well have been Phypers. 

    [125] T 243.

    [126] T 225.

    [127] T 227.

    [128] T 228.

    [129] T 232-233.

28. Reid’s evidence was that he grabbed one of the security officers, slung him into the wall and punched him in the face as hard as he could.[130]  He said that another security officer then tackled him and that both the security officers were on top of him and he ended up flying into the north-western corner.[131]  He said that a female security officer was on top of him.[132]  This was James. Reid said that as he was being thrown into the corner, Mills came flying into the south-western corner.[133]  He said he could not see Esposito at that time.[134]  Although aspects of Reid’s evidence regarding timing are incorrect, his evidence is generally consistent with other evidence on a number of points.  First, Kohler was the security officer with whom he was involved and was likely to have punched.  Kohler received face injuries, as can be seen from Exhibit P8.  Second, Reid’s evidence is consistent with Mills’ evidence that Mills was in the south-western corner and Reid was in the opposite corner.[135]

    [130] T 137.

    [131] Ibid.

    [132] T 170.

    [133] T 138.

    [134] Ibid.

    [135] T 226, 229-230.

29. James gave evidence that the patron with the white shirt and pinstripes (Reid) was with Kohler.[136]  She saw Reid punching three or four times, and also kneeing, towards Kohler.[137]  She said that she went to the aid of Kohler by pulling Reid away, allowing Kohler to then pull Reid to the ground.[138]  Pausing there, the action she describes in a general sense is not dissimilar to the description given by Reid and is certainly confirmatory that Reid and Kohler were in contact and that she assisted Kohler.  However, there are distinct differences between the evidence of James and the evidence of Reid.  James said that this action took place in the south-western corner, whereas Reid and Mills put the action as having occurred in the north-western corner. As previously indicated, the unidentified woman was in the south-western corner when James entered at 20:41:28.  Her position and the fact that her legs are seen on and off until 20:41:42, suggests that Reid was not with Kohler in the south-western corner when James entered.  Rather, they were in the north-western corner.  This would be consistent with the evidence regarding the position in which Kohler was last seen on the video, the direction from which James enters east again at 20:41:58, as well as the evidence of Reid and Mills on that topic. I consider the action to have more than likely occurred in the north-western corner.

    [136] T 1072.

    [137] Ibid.

    [138] T 1074.

1. What is required is a comparison between the conduct of the accused and the conduct of a reasonable person who possesses the same attributes as the accused (such as age, special knowledge and skills)[501] in the circumstances in which he found himself, having regard to the ordinary fortitude and strength of mind which a reasonable person has.[502] It must be proved that a reasonable person in the circumstances of the accused would have appreciated the dangerousness of the actions, or put another way, the reasonable person would have appreciated that there was a high risk that death or grievous bodily harm would follow the actions.[503]

   [501] R v Adomako [1995] 1 AC 171.

   [502] R v Lavender (2005) 222 CLR 67, 72-74.

   [503] Ibid, 74.

2. The accused’s own knowledge of the circumstances is relevant to considering the circumstances of the accused.[504]  The acts which comprise the breach of duty need not be unlawful.

   [504] Ibid, 88.

3. This need for objectivity with regard to the reasonable hypothetical person is in conformity with the other form of involuntary manslaughter, namely unlawful and dangerous act discussed earlier.[505]  In this way, both forms of manslaughter reflect the value which is placed by the law upon human life.[506]

   [505] See paragraphs [382]-385].

   [506] R v Lavender (2005) 222 CLR 67, 87-88.

4. In relation to the reasonable hypothetical person, regard can be had to their age and special knowledge and skills.

5. It has also been suggested in New South Wales Sugar Milling Co-operative Ltd v EPA[507] that the standard of criminal negligence may differ according to the nature of the offence. If the offence is a serious one, the departure from the standard of reasonableness must be greater than if the offence is minor.[508]

   [507] (1992) 59 A Crim R 6.

   [508] New South Wales Sugar Milling Co-operative Ltd v EPA (1992) 59 A Crim R 6.

6. One of the difficulties that has been discussed by many commentators and also the Victorian Law Reform Commission is the problem of formulating an objective standard that is not overly punitive, having regard to the fact that a breach of the standard amounts to a criminal offence.  This problem arises when considering who is the “reasonable person”.  The test of “reasonable person” poses potentially severe difficulties for those persons who may be unable to reach the standards of a reasonable person by virtue of some inherent physical or intellectual disability.[509]  This was specifically recognised by Kirby J in R v Lavender when he said:[510]

   It is true, that in extreme situations, a person may be exposed to criminal liability for being objectively at fault in circumstances where no one would regard that person as culpable.  For instance, it would not be rational to impute blame to a person who is physically or mentally incapable of achieving a standard of care expected by the criminal law.

   (references omitted)

   [509] R v Stone and Dobinson [1977] 1 QB 354.

   [510] R v Lavender (2005) 222 CLR 67, 108.

7. In so stating this, Kirby J referred to an article by Honoré, “Responsibility and Luck: The Moral Basis of Strict Liability”.[511]  Kirby J’s footnote reads:

   However, if that person enters in a situation cognisant of their incompetence to deal with that situation then they may well be properly blamed for harm that they cause.

   [511] Honoré "Responsibility and Luck: The Moral Basis of Strict Liability" (1988) 104 Law Quarterly Review 530, 535-537.

8. Kirby J continued that this may be theoretical by reason of the fact that:[512]

   In the overwhelming majority of cases, a person who causes death by aggravated criminal negligence will be regarded as extremely blameworthy.  The criminal law, by fixing liability only on those who act with aggravated negligence confines liability to cases of very serious wrongdoing in circumstances of moral blame.  In Wilson, Mason CJ, Toohey, Gaudron and McHugh JJ stated that there must “… be a close correlation between moral culpability and legal responsibility [for manslaughter].”  Notwithstanding that manslaughter is defined by reference to an objective test, this correlation is assured by the degree of negligence required.

   [512] R v Lavender (2005) 222 CLR 67, 108.

9. In this case, it was argued by counsel for Edwards that in looking at the characteristics of the reasonable hypothetical person in the circumstances in which Edwards found himself, I should have regard to the evidence that Edwards was, at the time when he was applying a hold on Esposito, suffering from concussion, which impaired his judgment of the situation.  Ms Powell submitted that there were a number of ways in which this factor could be taken into account: as a characteristic of the reasonable hypothetical person; as part of the circumstances which applied to Edwards at the time; or in assessing the degree of the breach of the standard of care required, using the Kirby J approach.[513]

   [513] R v Lavender (2005) 222 CLR 67.

10. By way of response Mr Brebner, on behalf of the prosecution, submitted that this factor, even if it did exist, should not be taken into account.  He submitted that the test was deliberately objective and that this would be importing a subjective quality into the test.  In his submission there was no such thing as a “reasonably dazed hypothetical person.”

11. I agree with the submissions of the prosecution.  In light of the above authorities on this point, it is inappropriate to take into account any dazed condition of Edwards, due to minor concussion or shock as an attribute of the reasonable hypothetical person. Further, this feature is not a relevant factor to be regarded as part of the “circumstances” in which Edwards found himself.  This is a personal quality and it is therefore not relevant to the circumstances in which he applied the headlocks.

12. As to the gravamen of the breach of the duty, it is arguable that such a condition may potentially be taken into account in looking at the seriousness of the breach if the obiter of Kirby J is followed; the majority do not refer to this point in their reasoning.  I will therefore discuss this notion when I deal with the application of these principles to the facts as I find them.

    Duty of care

13. In my view, Edwards owed a duty of care to Esposito in his role as a security officer in controlling and holding Esposito until such time as the police arrived.

14. As previously indicated, in considering criminal negligence, it does not matter whether or not the actions of the accused were lawful or unlawful.  Having said that, what Edwards was purporting to do was to control and hold Esposito pending arrival and arrest by police. This must have some proper foundation.  Security officers are not police.  They do not have statutory powers which enable them to lay hands on, overpower and deprive ordinary citizens of their liberty.  Laying hands on a person may amount to assault. In the situation of a person being a security officer dealing with unruly patrons who require either eviction to protect other patrons and staff or restraint pending police arrival, the duty of care owed is similar to that which is owed by police.  The force applied should be no more than is reasonably necessary to either evict or control and restrain the person.

15. I am satisfied that Edwards owed such a duty of care to Esposito.

    Breach of duty of care

16. The particular issue in this case is whether more force than was reasonably required was applied by Edwards in restraining and holding Esposito on the northern wall, and if so, whether this amounted to a great falling short of that duty.  This is to be assessed having regard to the standard which a reasonable person would have exercised in the circumstances of the accused.

17. I refer to my earlier findings as to the circumstances of Edwards which are also applicable here.[514]

    [514] See paragraphs [397]-[398].

18. I have also found that the actions of Edwards were not reasonably proportionate for the purpose of assisting with a lawful arrest[515] and that his actions were not reasonably proportionate to the threat posed by Esposito to the protection and safety of either Edwards or others.[516] 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.

    [515] See paragraphs [406]-[407].

    [516] See paragraphs [411]-[413].

19. I am satisfied that there was a breach of duty by Edwards in that he applied greater force than was reasonably required to control and hold Esposito.

20. In considering the gravamen of the breach, I will first consider the matters raised by implication from the obiter of Kirby J, namely the effect of minor concussion and shock. For reasons which I expressed earlier,[517] I am not satisfied that the symptoms suffered by Edwards impaired his judgment or ability to act rationally.[518] This situation differs markedly from the examples of physical and mental incapacity referred to by Kirby J when his Honour expressed a concern for modification.[519]

    [517] See paragraphs [286]-[288].

    [518] See paragraph [287].

    [519] Kirby J was concerned with the blame which should be attached if a person is either physically or mentally incapable of achieving the standard of care expected by the criminal law and with moral culpability (see R v Lavender (2005) 222 CLR 67, 108).

21. Further, it is relevant in considering the gravamen of the breach to have regard to whether there were any relevant directions given to Edwards by his superiors, for example Spencer, as to the need to maintain the headlocks. Again I refer to my earlier findings and conclusions on this aspect.[520] I am satisfied that this was not a relevant matter which affected Edwards’ responsibility for his own actions nor the degree of responsibility.  In any event the timing of the direction was too late to be relevant.

    [520] See paragraph [294]-[295].

22. A final matter which I address is the overall environment in which Edwards applied the headlocks and maintained them.

23. The evidence of Spencer was that he had not seen headlocks performed by security officers on patrons at the hotel prior to the night of the incident.[521]  This evidence is surprising given that Reid, Mills and Esposito were all placed in headlocks that night, and in Esposito’s case, three sets of headlocks (one set by Courtney and the other two by Edwards).  On the evidence before me, headlocks appeared to have been used as a restraint of first resort in place of other holds.  The headlocks imposed by Edwards on Esposito on the northern wall, however, were not simply applied for the purpose of getting Esposito down on the floor and under control, but were used to continue to subdue him.

    [521] T 1046.

24. Another aspect of the duty of care owed to Esposito was the requirement to use no more force on him than was reasonably necessary.  There was no evidence that anyone checked on the condition of Esposito during the time that Edwards held Esposito on the northern wall.  A simple checking of Esposito would have revealed that he was suffocating and had become unconscious.  It is highly disturbing that nobody noticed his unconscious state and eventual death, until he was turned over.  It was incumbent upon Edwards, who was the person maintaining this hold, to, at the very least, check on Esposito.  I also note that while Spencer was checking on the welfare of Edwards, he did not check on the welfare of Esposito. However, Spencer is not the subject of this charge and this observation is only an aspect of the overall context of Esposito’s situation when being held by the northern wall.

25. I am satisfied that the headlocks applied by Edwards in the circumstances fell far short of the standard of a reasonable person in his circumstances.

26. I turn now to whether or not a reasonable person in the circumstances of the accused would have appreciated that there was a high risk that death or grievous bodily harm would follow from the application of the headlocks by Edwards.  This is the aspect of dangerousness which is required to be addressed.

27. I refer to my previous discussion about what a reasonable person would have appreciated.[522] I accept 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 such a short period of time, before it could produce unconsciousness and death.[523] In this case, however, a combination of headlocks were applied over five and a half minutes.  A reasonable hypothetical person in the circumstances of Edwards would have appreciated that applying pressure around the neck for five and a half minutes would be exposing that person to a high risk of grievous bodily harm.  This, in my view, is generally known and is commonsense.  A reasonable person may not have known that there was a high risk of death, as distinct from grievous bodily harm, but that does not alter Edwards’ liability.  I also note that, in addition to headlocks, there was the pressure Edwards applied to Esposito’s upper back at the same time.

    [522] See paragraphs [386]-[394], [397]-[398] and particularly [400].

    [523] See paragraph [393].

28. On the issue of dangerousness, Spencer gave evidence that it did not appear to him that Edwards’ headlocks were dangerous and that if he thought it had started to become dangerous he would have said something.[524] This evidence needs to be viewed in the context of Spencer’s evidence that Edwards applied an arm bar hold and then later a chin hold. Those holds, if they had been used, would not have given rise to a high risk of grievous bodily harm or death. However, as discussed, my findings substantially differ from the evidence of Spencer.

    [524] T 1037

29. 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.

    Contributory negligence

30. Ms Powell submitted that whether Esposito himself contributed to or assumed the risk was relevant in assessing the standard of care owed to him by Edwards.  Given that the offence of manslaughter by criminal negligence stems from civil notions of negligence, it was contended that the tortious concept of contributory negligence must be relevant to the assessment of the standard of care.  According to Ms Powell, whether Esposito, Mills and Reid “started the fight” was therefore a relevant consideration in my assessment of any breach on the part of Edwards.

31. Mr Brebner correctly submitted that in the law of negligence it is a defence if the defendant establishes that the plaintiff appreciated a danger, and voluntarily accepted an obvious risk of suffering an injury as a consequence of the defendant’s conduct.[525] Mr Brebner noted, however, that there is no authority for the application of this concept to the criminal law except as a defence to assault.[526] Mr Brebner further submitted that consent and voluntary assumption of risk are essentially analogous concepts. Therefore, given that consent is not a defence to activities which might cause serious injury, voluntary assumption of risk cannot be used as a defence either. Even if it were a defence, there was no evidence to suggest Esposito appreciated, and voluntarily accepted, the risk of dying as a result of a fatal compression of the neck. In this I agree.

    [525] Insurance Commissioner v Joyce (1948) 77 CLR 39, 47.

    [526] Outline of Argument of Counsel for DPP dated 16 June 2008, 5.

32. Ms Powell acknowledged that contributory negligence could not be used as a defence in a matter of criminal negligence as it was in volenti, non fit injuria, whereas it could provide a complete defence to an allegation of civil negligence. She referred to the development of the law in this area and observed that this defence has now largely been subsumed by the law relating to apportionment.[527] Ms Powell therefore argued that the same notion of attributing blame between the parties is applicable here in determining the gravity of the breach by Edwards, and whether the breach reaches the high threshold required for a finding of criminal negligence.

    [527] T 1183.

33. In my view, the consideration of any contributory negligence on the part of Esposito, or the apportionment of blame between the three patrons and the security officers, would not provide any different perspective to my deliberations. The conduct of Esposito and his friends, and whether they “started the fight”, was taken into account in assessing the circumstances of the accused, as he genuinely believed them to be. Introducing the civil concepts of fault and apportionment of blame serves no further purpose in my assessment of the standard of care owed by Edwards to Esposito. It unnecessarily and inappropriately infuses civil notions, developed largely through insurance litigation, into a criminal context.

34. A further basis upon which it was contended by Ms Powell that I should have regard to voluntary assumption of risk and blame by Esposito and his friends for the altercation, is as part of the circumstances in which Edwards found himself.  Again, I reject this argument.  Alleged blameworthiness or fault of Esposito and his friends does not affect the standard of care, nor the seriousness of the breach of that standard by Edwards when holding Esposito on the northern wall in the four positions.  Esposito was already in a controlled situation being held down by Edwards with the assistance of others.  It was not during the early throes of the confrontation.

    25.  Summary

35. Having regard to the whole of the evidence in this case and for the reasons I have discussed, I am satisfied beyond reasonable doubt that the accused is guilty of the manslaughter of Domenic Jason Esposito on 27 February 2005 at Henley Beach, South Australia.

36. I am satisfied beyond reasonable doubt that the accused maintained headlocks around Esposito’s neck, being either a choker hold or a sleeper hold, over the period 20:43:50 to 20:49:24; a period of approximately five and a half minutes. During the majority of this time, Esposito was also being held down by three or more security officers or a staff member. 

37. I am satisfied beyond reasonable doubt of the guilt of the accused of manslaughter by both its forms, namely killing by unlawful and dangerous act and killing by criminal negligence.

38. The element common to both forms of manslaughter, of which I am satisfied beyond reasonable doubt, is that the actions of the accused in relation to Esposito on that night were not reasonably proportionate, and were well in excess of what was reasonable to control Esposito and to protect either the accused or others.

    SCHEDULE OF WITNESSES

    The Accused

    1Paul John Edwards

    Friends of Esposito

    2Kane Reid

    3Wade Michael Mills

    Staff of the Ramsgate Hotel

    4Michael John Richards

    5James Francis Hunt

    6Bradley Alan McDonald

    7Benjamin Andrew Mattsson

    8Joanne Lee London

    9Fiona Louise Zbierski

    10Daniel Thomas Arthur Griffiths

    Security staff

    11Travis Jerram Pix

    12Adam Steven James Spencer

    13Melissa Margaret James

    Patrons

    14Lisa Michelle Mihatsch

    15Kyla Melissa Daly

    16Nicolle Kym Harvey

    17Cicilia Alinta Robinson

    18Timothy Robert Inkster

    19Kelly Ruth O’Loughlin

    20Karen Louise Penhall

    21Amanda Jane Jenkins

    22Alison Sandra Care

    23Dusan Jurkovic

    24Eva Gabrielle Irvine

    25David Francis Kyneur

    26Leith John Irvine

    27Wayne Edward Charlton

    28Julie Ann Bell

    29Kylie Ann Charlton

    30Chase Aaron Wescombe

    31Sarah Louise Elding

    Police

    32Peter Russell McKenzie

    33Melissa Nicole Valassakis

    34Archer Martin Pearson

    35Kurt Gavan Slaven

    36Matthew James Fitzpatrick

    37Victor Botuch

    38Darren Kevin Fechner

    39Ashley Ronald Surman

    Ambulance

    40Bradley Scott Webber

    41Simon John Dickerson

    42Stephen Glen Pettman

    43Darren McInerney

    Security officer training

    44Andrew George Marks

    45Graham Francis Kuerschner

    Expert witnesses

    46Dr John Duncan Gilbert

    47Gary Martin Palmer

    48Dr Ewa Stankiewicz

    49Dr Geoffrey Fraser White

    50Dr Ernest Leslie Flock

    51Dr Jason Mark White

    Character witnesses

    52Dean Ronald Bowden

    53Gregory Crossman

    Witnesses regarding other incidents involving Esposito and Mills

    Two witnesses whose names were suppressed.