R v EVANS - [2015] SADC 59

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v EVANS
Criminal Trial by Judge Alone
[2015] SADC 59
Reasons for the Verdict of His Honour Judge Brebner
21 April 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY
Criminal trial by Judge alone. Accused charged with aggravated causing harm with intent to cause harm.
Verdict: Guilty.
Criminal Law Consolidation Act 1935 ss 5, 5AA, 15, 15B, 21, 24(1) and 25, referred to.
Spence v Demasi (1988) 48 SASR 536; Driscoll v The Queen (1977) 137 CLR 517; Fox v Percy (2003) 214 CLR 118; Jones v Dunkel (1959) 101 CLR 298, considered.

R v EVANS
[2015] SADC 59

The accused is charged with aggravated causing harm to one Kilroy with intent to cause harm contrary to s 24(1) Criminal Law Consolidation Act 1935 (the Act). The circumstance of aggravation alleged is that he used an offensive weapon, namely a glass, in committing the offence.
The accused ultimately elected for trial by judge alone.
The facts I am about to recite are not in dispute.
The accused and Kilroy were both drinking at the Warradale Hotel on the night of Saturday 19 October 2013. They were unacquainted. At about 12.20am in the morning of Sunday 20 October they became involved in an altercation. The accused struck Kilroy a blow to the forehead. He was holding a glass in his hand when he did so. The glass broke on impact with Kilroy’s head. Kilroy collapsed. He was taken to the Flinders Medical Centre. On examination he was found to be in pain and suffering from four deep lacerations to the forehead. The lacerations could only have been caused by the glass breaking on impact. The accused was arrested shortly after the incident. He told the arresting police officers that he felt threatened and that he defended himself. He was subsequently interviewed. He told the interviewing officers that he was involved in the altercation, that Kilroy had threatened to smash a glass into his face and that Kilroy had eventually struck out at him.
The accused gave evidence. In essence he said that he had felt threatened by Kilroy, that Kilroy had swung a punch at him; that they then became involved in a scuffle, that he had ultimately punched Kilroy in self-defence and that he did not realise that he was holding the glass in his hand when he did so. He did not say that Kilroy threatened to smash a glass into his face.
It is the prosecution case that the accused struck the blow well knowing that the glass was in his hand, that he did so intending to cause harm to Kilroy, that he was not acting in genuine self-defence and that he used the glass as an offensive weapon.
I am satisfied that the charge has been proved beyond reasonable doubt. My reasons follow.
Principles engaged
The accused is presumed to be innocent.
The accused cannot be convicted of the charge unless I am satisfied beyond reasonable doubt that each and every element of the charge has been proved beyond reasonable doubt. Whenever I use expressions such as ‘proved’, ‘satisfied’ or ‘established’, I will always mean proof beyond reasonable doubt.
What the accused said to the police is material in the case. It is open to me to accept or reject anything that he said, either in whole or in part, and to give that which I accept the significance that I think it deserves.[1]
[1] See Spence v Demasi (1988) 48 SASR 536.
As the tribunal of fact I am concerned with credibility and reliability. I can accept or reject different parts of any witness’ evidence as I logically see fit.
Whether, and if so to what extent, any prior inconsistent statements affect the credibility and reliability of any witness are matters of fact and degree: Driscoll v The Queen.[2]
[2] (1977) 137 CLR 517 at 586-587 Gibbs J (as he then was).
It is well settled that care and caution must be exercised before credibility findings can be made on demeanour alone, and that as far as it is possible to do so the tribunal of fact should reason to its conclusion ‘on the basis of contemporary materials, objectively established facts and the apparent logic of events’, but this notwithstanding, demeanour remains a relevant consideration: Fox v Percy.[3]
[3] (2003) 214 CLR 118 at [31]-[32].
The accused gave evidence. He was not obliged to do so. His evidence is to be assessed in the same way as that of any other witnesses. His evidence is not to be undervalued simply because he is on trial. He does not assume an onus by stepping into the witness box and he does not have to prove anything. Even if I reject his statements to police and his evidence on affirmation, he is not, therefore, to be found guilty and even if I do reject what he has said, I would nonetheless still have to consider the prosecution evidence and determine whether it proves the charge.
I will mention other relevant principles when it is convenient to do so.
Definitions
For the purposes of the charge, s 21 of the Act provides that ‘harm’ includes physical harm, whether temporary or permanent, and, relevantly, that ‘physical harm’ includes pain and disfigurement (my emphasis). It is plain that this definition of physical harm is inclusive and not exhaustive. Section 21 also provides that ‘a person causes harm if the person’s conduct is the sole cause of the harm or substantially contributes to the harm’.
Elements of the offence
There are two limbs to the charge namely the basic offence of causing serious harm with intent and the circumstance of aggravation.
The basic offence is comprised of four elements.
1Kilroy must have suffered physical harm in the sense that he must have experienced pain or suffered disfigurement, be it temporary or permanent, or that he suffered something else which amounts to physical harm as that expression is ordinarily understood.
2The harm must have been caused by a conscious, voluntary and deliberate act on the part of the accused.
3The accused must have performed the act which caused the harm with the intention of causing harm.
4The relevant act must have been unlawful, that is to say that it must be proved that the accused performed it without lawful justification or excuse, such as self defence.
I turn to the circumstance of aggravation. Section 5AA of the Act provides that an offence is an aggravated offence if the offender ‘used, or threatened to use, an offensive weapon to commit, or when committing the offence’. Section 5 of the Act defines offensive weapon in these terms:
offensive weapon means –
(a) an article or substance made or adapted for use for causing, or threatening to cause, personal injury or incapacity including –
(i)…
(ii)…
(b) …
Section 25 of the Act provides for alternative verdicts. None of them arose for my consideration.
The scene
The hotel is equipped with a closed circuit television security system.
There were a number of people in the bar where the altercation took place. There is a dance floor in the bar. The lighting on the dance floor is dimmer than in the other areas of the bar. There were between about 20 and 50 people in the immediate area of the altercation.
Eyewitnesses
Prosecuting counsel, Ms Burrows, called four eyewitnesses. None of them knew either the accused or Kilroy. There is however, no dispute about who is who, and I will simply assign the relevant name to the man who is indisputably either the accused or Kilroy.
A licensed and reasonably experienced security officer named Kobelt was working in the bar at the relevant time. He says he was about eight to 10 metres distant when he first noticed two men scuffling on the dance floor. He did not see how it started. He had an unobstructed view. He was concentrating from the moment he noticed something was amiss. If the CCTV footage is anything to go by, his estimate of how close he was is reasonably accurate and none of the patrons who were on the dance floor appear to be obstructing his view. He had not been drinking.
Kobelt said that the accused and Kilroy were aggressive towards each other. They were grabbing each other’s shirts by the collars, upper chests and sleeves with both hands and launching occasional punches at each other in a jabbing fashion. They were both trying to defend themselves ‘as you would in a fight’.
Kobelt moved towards the protagonists. He did not lose sight of them. He said that the accused was walking forwards and Kilroy was walking backwards. He said that when he was about two to three metres from them, Kilroy appeared to lose his footing and slip such that his left knee was on the floor or very close to it. He said that they still had hold of each other. He said that Kilroy had one of his hands up near his face and that he may still have had hold of the accused’s clothing. He said that Kilroy appeared to be trying to gather himself and regain his feet. He is certain that Kilroy slipped.
Kobelt said that he was at right angles to the accused and Kilroy when Kilroy slipped. He said that the left side of the accused’s body was presented to his view. He said that he then saw that the accused had a glass in his right hand.
Kobelt said the glass was a small spirits glass with convex sides and a heavy bottom. He said it was about the same size as a glass which was ultimately tendered. The accused agreed that this glass was about the same size as the glass he was drinking from immediately before the altercation broke out. The glass is 7.5cm in diameter, 8.5 cm tall and the base is 1.75cm thick. Kobelt does not know whether the accused had the glass in his hand for the entire duration of the altercation.
Kobelt said the glass was just behind the accused’s right side when he first saw it and that the accused’s body thus did not obstruct his view of it. He said the base of the glass was in the palm of the accused’s right hand and he was clutching its sides with his fingers and thumb. He said that the accused was holding the glass horizontally. He said that the accused swung the glass at Kilroy’s head with a round arm action. He said the glass struck Kilroy just above the left eye. He described it as a high impact and as if the accused had thrown the glass at a brick wall. He said that the glass broke on impact whereupon Kilroy collapsed. He is certain that the accused was holding the glass in the manner that he described and that he employed a round arm action. The blow was not struck from shoulder height as he remembers it, although he says that the accused may have lifted the glass from his side and then swung it.
Kobelt said that the whole incident was over in a matter of seconds and again this is borne out by the digital time display on the CCTV footage.
Kobelt then went on to say that a third man then came and stood between the accused and Kilroy and that some people came to Kilroy’s aid whereupon the accused moved towards the exit. He said that the accused appeared to be moving as quickly as he could. Again the CCTV footage appears to bear all this out. Kobelt said that the accused was apprehended and restrained by another security officer or officers after a struggle. He said Kilroy was either conscious or semi-conscious after he was struck and that an ambulance arrived about 10 minutes later.
Kobelt said that he advised other security officers by radio that there had been a ‘glassing’.
Under cross-examination Kobelt disagreed with the proposition that he told the accused that he ‘better get out of here’ however, he did say that when one breaks up a fight one tells people to move away rather than to leave.
As far as the sobriety of the protagonists is concerned, Kobelt said that the accused was moderately affected by alcohol and Kilroy was slightly more so.
A man named Catlin was at a bar adjacent to the dance floor. He arrived at the hotel about two hours and 15 minutes before the incident. He had consumed three stubbies of beer over a three hour period before his arrival. He consumed another two or three pints of beer at the hotel. He described himself as ‘minimally’ affected.
Catlin was facing the bar when the altercation commenced. He heard raised male voices behind him which sounded like a heated argument. He turned around to see what was happening whereupon he saw two men engaged in a scuffle some two to three metres out onto the dance floor from where he was standing. He said the scuffle was not particularly violent and under cross-examination he disagreed with the proposition that it was ‘strenuous and very violent’.
Catlin does not know who started the altercation or if either of the protagonists did anything in relation to the clothing of the other. It was all over very quickly and it culminated in the accused thrusting a spirit glass at Kilroy causing him to collapse.
Catlin did not see the glass before it was thrust at Kilroy. He described the action employed by the accused as a punching or thrusting motion from the shoulder with the left hand. He conceded that a punch and a thrust appear similar. He cannot say if it was a round-arm action. He does not know what happened to the glass on impact.
Another man named Dunn was also at the same bar. He said that he had been in the bar for two hours at the most before the incident occurred. He said that he had two drinks of Jim Beam and Cola before the incident and that he was unaffected.
Dunn was standing side on to the bar and relatively close to it and to Catlin when the altercation commenced.
Dunn said that he had an unobstructed view of events as they unfolded. He said that although it was dark on the dance floor he could nonetheless see what was happening. He heard a commotion and turned and saw that a fight was breaking out on the dance floor about two to three metres from where he was standing. He said that the accused and Kilroy were holding each other by the shoulder and upper arms and that they were pushing each other. He expanded on this by saying that it was a fight in the sense that they were pushing each other and thus scuffling but no punches were thrown. He said the accused was holding a pint glass which was about three-quarters full of beer in his right hand. He could not see anything in either of Kilroy’s hands.
Dunn said that one was pushing the other backwards and onto the dance floor. He is ‘pretty sure’ Kilroy was the one who was being pushed backwards. He said the incident culminated in the accused pushing the glass into Kilroy’s forehead. He said the accused was holding the glass by the base with a normal grip. He demonstrated that the accused drew his arm back to his shoulder and then straightened it in Kilroy’s direction. He expanded on this by demonstrating that the accused was holding the glass at a little above waist height and that he then angled it forwards to about 45 degrees, and then thrust it forwards and upwards into Kilroy’s forehead. He said that the glass smashed on impact and fell to the floor. He said Kilroy then took a couple of steps backwards and collapsed whereupon the accused ran towards the door. He said the entire incident took no more than 10 seconds.
Under cross-examination Dunn rejected the proposition that the accused punched Kilroy with the glass in his hand and he maintained that it was a pushing motion. He also rejected the proposition that Kilroy pulled the accused downwards as he was collapsing. He accepted the possibility that the accused might have walked rather than run away, but he maintained that he ‘did try and get out of there quickly, he wasn’t standing around waiting for security’.
Dunn also agreed that he had not stated to police that the accused was holding the glass at an angle. He said the police had not asked him about the angle at which the accused was holding the glass. He said he had a recollection of the angle at which the accused was holding the glass.
Initial apprehension
A security officer named Lawrie made his way to the bar in response to Kobelt’s radio message. On his arrival he received a second radio message from Kobelt advising him that the accused was the man in question. He said that he saw the accused moving at ‘a fast walking pace’ in the direction of the exit. He said that he grabbed the accused by the arm and enquired if he had been involved in an incident on the dance floor whereupon the accused pushed him away and told him to ‘fuck off’ and get out his way. Lawrie and another security guard then restrained the accused.
Lawrie said that he had told the accused that ‘he would have to talk to the police and explain himself’. He said that after the accused had been restrained he asked him ‘were you involved in that glassing’ to which he replied ‘the other bloke glassed me first’.
Lawrie agreed that he had stated to police that the accused had said ‘the other bloke tried to glass me first’. He said that his current recollection was that the accused had said ‘he glassed me first’. Under cross-examination he rejected the possibility that he could be mistaken and that the accused did not say anything about a glassing. He also rejected the possibility that the accused could have said ‘the other guy tried to hit me first’.
He further rejected the proposition that the accused did not tell him to ‘fuck off’.
Kilroy
Ms Burrows did not call Kilroy. The investigating officer said that he had obtained a statement from Kilroy. He said that Kilroy spoke with an Irish accent and that he last saw him about 12 months before the trial commenced. He described the unsuccessful attempts he has made to contact Kilroy since then. Suffice it to say that he did all that could reasonably be expected of him to find Kilroy.
In any event, counsel for the accused, Mr McCarron, did not submit that I should draw an inference of the kind indentified in Jones v Dunkel.[4]
[4] (1959) 101 CLR 298.
CCTV
Footage of parts of the incident was captured by three security cameras. The footage is of limited clarity. It nonetheless assists in identifying who was who and where they were standing when the altercation commenced. It is not disputed that the accused can be seen with his back to the bar. It is also not disputed that Kilroy appears in front of him and they appear to engage in conversation. It is plain from the footage that the conversation comes to an end when Kilroy appears to swing a punch at the accused which the accused avoids by leaning backwards and rocking his head back.
Injuries
Kilroy was examined and treated at the Flinders Medical Centre some hours after the incident. He was found to be in pain and suffering from four deep lacerations to his forehead. The lacerations were sutured. No other abnormalities were detected.
There was no pathological evidence about the mechanisms which could have caused the lacerations.
Interview
Police were quickly on the scene and the accused was arrested at about 12.30 am. He was advised of his rights on arrest. It is sufficient to say that while his rights were being explained to him the accused said that he had defended himself because he felt threatened by Kilroy.
The accused was then taken to the Sturt Police Station and interviewed. The interview was video recorded. He was re-cautioned and he said that he understood. The basic allegation was then put to him, he was asked if he wished to answer questions and he said that he would answer ‘certain questions’.
The accused said that he had arrived at the hotel at about 11.30 pm. He said that he had been involved in the altercation and that he was on his second beer at the time. He said that he had also consumed about 10 drinks since about 2.00pm the previous afternoon. In particular the following exchange took place:
Q20Okay. And in relation to the altercation, with, with another male, was that you, were involved in that altercation?
AYes
Q21So how, how did it start?
AOh um yeah oh was words spoken about, you know he was being, started off, first thing he said to me was do you wanna suck my cock, was the exact first words he said to me and then he proceeded to go around slapping various women in the, on the arse and then … and then one, a younger girl rejected his advances. I sort of put my arm around him and said oh um how you going mate, you having a good night, just let him know I was there. Which was just dumb, I shouldn’t have been involved. And then ah he um after that he was angry. And ah he, and he, do you want me to continue with this, he, he, he then
Q22   If you, if you want to
AHe then threatened me with, I’m gonna smash a glass in your face, I’m going do this I’m gonna do that. I didn’t say much to that at all. I just stood there and held me tongue then eventually he obviously had enough and and struck out at me. And after that, I don’t remember what happened after that. And that’s all I have to say, that’s, that’s enough, unless there’s , that line of questioning, that’s all I have to say on that matter. Unless there’s
Q23   Okay
ADifferent questions that don’t pertain to what happened after he tried to hit me.

One of the arresting officers said that the accused had a fresh cut between one and two centimetres long to the webbing of his right hand between the thumb and forefinger. In this regard the following exchange occurred:
Q24Okay. Just in relation to, you’ve got a cut on your right hand. Can you tell me how that cut happened?
AI don’t know how that happened
Q25 Okay. Did you have that cut when you went into the pub?
AI don’t remember
Q26You don’t remember. In relation to the blood that’s on your shirt, you’ve got some blood on the cuff on, on
AI don’t remember
Q27 Do you know how that got there?
AI don’t know how that happened, no idea.
After some further questioning which it is not necessary to summarise, the accused said that he had no further comment. The mere fact that he exercised his right to silence cannot be used against him in any way whatsoever.
Transcripts of the conversation when the rights were given and of the interview itself were marked for identification. I remind myself that the transcripts are merely an aide memoir and that the audio and the video are the evidence.
Both arresting officers described the accused as being moderately affected by alcohol.
The accused
The accused gave evidence. He is 42 years of age. He said he drank about six schooners of beer at the races during the afternoon of the day in question. He then went to the Morphett Arms Hotel at about 6pm where he drank a further three schooners of beer. He then went to a friend’s home at about 9pm and drank a further two stubbies of beer. He then went to the Warradale Hotel with two friends at about 11.15pm. He then switched to spirits and he was on his second when the incident occurred.
The accused said that he was ‘jovial’ and becoming intoxicated. He was standing near the bar drinking with his friends relatively close to where Catlin and Dunn were drinking when the trouble started.
The accused said he was standing with his back to the bar facing the dance floor talking to his friends when his interaction with Kilroy commenced. He said that Kilroy appeared in front of him, looked him up and down and said ‘do you want to suck my cock’ and ‘you look like a right faggot’. He said, in effect, that they then placated each other and that Kilroy went on his way. He said that Kilroy was in company with at least one other man. Under cross-examination he said that Kilroy did not seem ‘spectacularly drunk’, but that he was nasty.
The accused said that he eventually noticed that Kilroy appeared to be molesting, or paying unwelcome attention, to a female. He said that this was about 10 to 15 minutes before the incident. He said that about three minutes later he saw Kilroy doing much the same to another female. He said that it was plain to him that both females were annoyed with Kilroy. He said that he thought Kilroy was behaving anti-socially and so he decided to speak to him. He said that he approached Kilroy and asked him if he was having a good time whereupon Kilroy became agitated and very angry. He said that he told Kilroy he was ‘wrecking it for everybody’, which in turn prompted a ‘rant of abuse’ from Kilroy. He said that Kilroy ‘basically threatened to smash my face in’. He did not maintain his allegation to police that Kilroy threatened to smash a glass into his face.
The accused said that he thought Kilroy ‘was a bit of a nutter’ and that he became ‘really frightened’ of him and so he apologised in order to defuse the situation. He said that he then went back to the bar. He said he had his back to the bar and that he was holding his glass in his right hand. His little finger was under the base of the glass and his other fingers and his thumb were wrapped around it.
The accused said that about two or three minutes later Kilroy materialised in front of him and threw a punch at his head with a clenched right fist. He leant backwards, put his hands up in front of his face with the palms outwards and the punch hit his hands. He said that Kilroy was ‘extremely aggressive’ and ‘really trying to hurt me’. He said he felt ‘scared and threatened’. He said that they then locked arms and that they were holding each other’s shirts. He said that he grabbed Kilroy’s hand and that they were trying to hit each other. He said he was annoyed and scared and that he was angry and lost his temper. Under cross-examination he conceded that the CCTV footage demonstrates that they were face to face and apparently talking for a minute or so before Kilroy threw the punch. He said he thinks that he might have been scared at this stage of proceedings but that he has no explanation as to why he did not simply walk away. He says that he cannot remember any of the conversation before the punch was thrown.
The accused said that they continued to grapple after initially locking arms and that they moved out onto the dance floor as they did so. He said that he was worried that Kilroy was intent on punching him in the head and ‘really hurt me’. He said that he was trying to grab hold of Kilroy’s shoulders and the top of his shirt, and that he was trying to hit him and that Kilroy was doing much the same. He said he was eventually able to get one of his hands free and strike Kilroy to the head. He said that he did so ‘to hurt him because he was trying to hurt me [and] to end the fight’. From then on the examination-in-chief proceeded on the assumption that the accused had punched Kilroy and it is necessarily implicit in the accused’s answers that he accepted this assumption as being correct, and indeed he ultimately said that he had intended to punch Kilroy rather than slap him. He said he felt threatened and scared and that he used such force as he thought was necessary to defend himself. He said that he did not realise that the glass was in his hand and that he did not intend to strike Kilroy with it. He said that he nonetheless recognised that if he punched Kilroy he might injure him. He said Kilroy was holding his shirt when he delivered the punch. Under cross-examination he agreed that after the scuffle started it ‘worked out’ that he was moving forwards and Kilroy was moving backwards. He said that they were both being as forceful as they could be, that by trying to stop the fight he was trying to win the fight, that the blow that he ultimately struck was forceful and that Kilroy did not swing any punches while they were scuffling. Also under cross-examination, he denied that he was in control of the situation when Kilroy was moving backwards, he said that Kilroy might have been pulling him back and that it would have been his intention to hit him with a clenched fist.
The accused said that after he threw the punch Kilroy fells backwards and dragged him downwards towards the floor. He said he eventually broke Kilroy’s grip and regained his balance. He said that he was apprehensive about how Kilroy’s companions might react. He said that one of Kilroy’s friends raised his fist whereupon a third party came between them.
The accused said that a security officer grabbed him on the shoulders, pushed him towards the bar and told him to ‘go away’ or ‘get away’. He said he took this as advice to leave the premises. He said that Kilroy was lying on the floor and obviously in trouble and that at about this time he noticed that he had suffered a cut to his hand. He said he took the security officer’s advice and set off towards the exit at a brisk walk.
The accused said that he has no recollection of anybody using the words ‘glass’ or ‘glassing’ after he was apprehended by hotel security, and that in any event he was unfamiliar with the expression ‘glassing’. However, he later went on to say that while the security officers had him under restraint he heard that a glass was involved. Under cross-examination he denied that he had told Lawrie that Kilroy had glassed him first and he then said that he does not believe that he would have said this to Lawrie. Also under cross-examination he said that he has no recollection of telling Lawrie to ‘fuck off’.
The accused said that when the interview commenced he was tired, upset and angry with himself, and perhaps still slightly inebriated. He said that his assertions during the interview that he could not remember whether he had the cut to his hand before he went to the hotel and that he could not remember what had happened after Kilroy took a swing at him did not represent the truth of the matter. He agreed that he told the police that Kilroy had said that he was going to smash a glass in his face however; he said that although he recalls Kilroy threatening to smash his face in, he has no recollection of Kilroy saying he was going to do so with a glass. He said that he does not know what he was thinking at the time he gave this answer.
The issue identified by counsel
Both counsel submitted that the critical issues were whether the prosecution have proved that the accused realised that the glass was in his hand and that he intentionally struck Kilroy with it.
Ms Burrows sensibly conceded that if the prosecution failed to exclude the possibility that the accused did not realise that the glass was in his hand then the charge must fail.
Credibility and reliability
Kobelt, Catlin, Dunn and Lawrie were plainly honest, intractably neutral and doing their best to give accurate accounts of the matter. Kobelt, Catlin and Dunn give differing accounts about the incident itself. This is not surprising. The real question is whether the differences in their accounts are such as to call the reliability of any or all of them into question.
Kobelt had not been drinking. It is implicit in Lawrie’s evidence that he had not been drinking either. It is plain that both of them were assessing the circumstances from a professional point of view. Kobelt was concentrating on the altercation from the moment his attention was drawn to it and Lawrie’s attention was focused on the accused after he came on the scene. There is nothing in the way that either of them gave their evidence which suggests that they have forgotten important details or that they were filling in gaps in their memories with guesswork. Indeed Kobelt made appropriate concessions whenever he was uncertain about some of the finer detail.
Catlin was only mildly affected by alcohol and Dunn was either unaffected or minimally affected at worst, however, they were both observing the scuffle from a lay rather than a professional perspective.
The lighting on the dance floor is dimmer than it is in the balance of the bar. Kobelt said that a still photograph downloaded from the CCTV footage fairly accurately portrays the lighting conditions in the relevant area. Catlin described it as ‘fairly dark’. Dunn agreed that it was quite dark on the dance floor but that he could nonetheless discern the way the accused was holding the glass. The accused said that the CCTV footage accurately reproduces the lighting conditions.
The photograph which was put to Kobelt is somewhat blurred. One can nonetheless still discern people, clothing and objects. Indeed it appears that a female who is on the dance floor is holding a glass. The CCTV footage confirms that the lighting in the area of the dance floor would have been sufficient for Kobelt, Catlin and Dunn to see how the accused was holding and ultimately wielded the glass. Kobelt and Catlin had an unobstructed view of what they saw of the incident. Dunn was not asked if his view was obstructed however, it is plain from his identification of himself on the CCTV footage that his view of events would have been reasonable.
Kobelt initially said that Kilroy was carried out on a stretcher. When it was put to him that Kilroy had walked out of the premises he said that he could not remember and that his primary recollection is of trying to keep the patrons away from Kilroy to enable the ambulance personnel to attend to him. The way in which Kilroy departed is a minor detail which is unrelated to the incident itself. The incident itself was the significant event and, as one would expect, Kobelt was concentrating on it. It is thus easy to see how he could be wrong or uncertain about the sequential minor detail of how Kilroy departed but nonetheless reliable about the culmination of the incident itself. The reality is that Kobelt’s mistake or uncertainty about the manner of Kilroy’s departure is inconsequential and in my view, lacks any capacity to call his reliability about the incident itself into question.
Counsel for the accused, Mr McCarron, submitted that Kobelt must have been reconstructing when he says he saw the glass before it impacted on Kilroy’s head because the accused’s body would have been blocking his view of the accused’s right hand up until the blow was struck. Kobelt said he was two to three metres from the protagonists and at 90 degrees to the accused’s left side immediately before the blow was struck. When he was asked while under cross-examination how he was able to see the glass from this position, he explained that the way the accused ‘was holding the glass, it was sort of behind him, if that makes sense, to his side but down’. In examination in chief he had said that when he had first noticed the glass the accused was holding it at elbow height, or a little less, and he demonstrated that the accused had straightened his arm and drawn it back to just behind his body and then swung it horizontally. He said it was quite a long swing, ‘almost a full hook’. It can thus be seen that both in examination-in-chief and cross-examination Kobelt puts the glass as behind the accused’s body. He would thus have been able to see it even though the left side of the accused was presented to his view. In this regard it must also be borne in mind that the altercation was fluid in the sense that Kilroy was moving backwards and also that Kobelt had a three dimensional view of what was occurring from quite close range and so even the slightest change in the alignment of the accused’s body could have enhanced his view.
Kobelt gave his explanation spontaneously and without the slightest hesitation and he did not give the impression that he was reconstructing. Given all this, given that he was only two to three metres away and concentrating, and given that he made concessions from time to time, I am satisfied that if he had not seen the glass before impact he would have said so. In any event where he saw the glass behind the accused’s body is where one would expect it to be if the accused had executed a backswing so as to increase the potential force of the blow he was about to strike. The submission that Kobelt would not have been able to see the glass before the blow was struck is rejected accordingly.
Based on Kobelt’s concession that the accused might have been holding the glass at shoulder height when be commenced to swing it towards Kilroy, Mr McCarron submitted that what Kobelt saw could well have been a punch thrown from the shoulder straight towards Kilroy rather than a round arm swing. Under cross-examination Kobelt was adamant that it had been a round arm swing and not a punch and he said that even if the blow commenced at shoulder height, it was nonetheless a round armed swing. Kobelt demonstrated the mechanism he remembers on a number of occasions and each time he did so he demonstrated a round arm semi-circular swing.
In my view his concession that the blow might have commenced at shoulder height cannot of itself demonstrate that he might be wrong when he says it was a round arm swing.
Catlin said that the accused was holding the glass in his left hand. He is plainly wrong about this. That said, he would be more likely to remember what was done with the glass rather than which hand it was in. He said that the accused employed a thrusting motion, but it cannot be overlooked that he conceded that a thrust and a punch are ‘fairly similar’.
Dunn said that the glass was a pint. He is plainly wrong about this. That said, he also would have been more likely to remember what was done with the glass rather than what sort of glass it was, and his error in this regard does not cause me to entertain doubts about the reliability of his evidence about the nature of the blow he observed.
Dunn told police that he saw the accused pick up the glass. Under cross-examination he said that he did not see this. His explanation for this apparent inconsistency is that it was ‘a bit hard’ to remember the precise details and that the CCTV footage had changed his view. Again it is more likely that he would remember what was done with the glass and I regard the inconsistency as inconsequential.
It was put to both Kobelt and Dunn, in effect, that some of the CCTV images are inconsistent with certain aspects of their accounts and consistent with the accused’s account. The images are not particularly clear. The incident lasted a matter of a few seconds. Patrons were milling about, the protagonists were moving and they cannot always be seen. The images are of course, two dimensional and in my view they are inconclusive with regard to the reliability of either Kobelt or Dunn.
Lawrie said that the accused said ‘the other guy glassed me first’ whereas he agrees that he told police that the accused said ‘the other guy tried to glass me first’. He said that what he said in evidence is his current recollection.
Kobelt sent a radio message alleging that the accused had been involved in a glassing and it was Lawrie’s intention to speak to the accused about this. That he would in fact have then spoken to the accused about a glassing and that he would then accurately remember the gist, though perhaps not the precise words of any answer, is consistent with ‘the apparent logic of events’.[5]The general effect and implication of either version of what the accused said in response was that he had responded to Kilroy in kind. For these reasons the inconsistency does not cause me to doubt that the accused did in fact tell Lawrie that Kilroy had tried to glass him, or that he had actually done so, and nor does it cause me to doubt his rejection of the proposition that the accused told him ‘the other guy tried to hit me first’.
[5] Fox, ibid.
The accused gave his evidence-in-chief in a relatively straight-forward manner. Under cross-examination he sometimes did not address the point of questions to the extent that he created the impression of prevarication.
The accused is at odds with Kobelt about what Kobelt said immediately after the incident. The accused said that he took what Kobelt said as advice to leave the premises for his own good. Kobelt said that in the ordinary course of events he would have told the accused to calm down, or move away but that he would not have told him to leave. This also accords with the inherent logic of events in that it is plain that an experienced security officer in Kobelt’s position will be unlikely to tell someone who might have committed an offence of violence to leave the premises. Notwithstanding that the heat of the moment would have been potentially productive of misunderstanding; I cannot see how the accused could have misinterpreted that which Kobelt is most likely to have said.
With regard to why he told the police that he could not remember if he had sustained the cut before arriving at the hotel when this did not represent the truth of the matter, he said that he was ‘not sure’ why he gave the answer that he did. When he was asked whether he knew that he was giving an untruthful answer to the police he said that he did not know what he was thinking at the time, and he then went on to say that he believes he was trying not to answer the question, and that he should have exercised his right to silence. The reality is that he had exercised his right to silence a mere two questions earlier so it is difficult, on the face of it, to see why he did not do so again if this is what he was attempting to do.

With regard to why he told the police that he could not remember what happened after Kilroy took a swing at him, his explanation while under cross-examination was again that he should have exercised his right to silence, and that he is not ‘well versed in these matters’. He had in fact exercised his right to silence in the very next breath after he told the police that he had no recollection of what happened after Kilroy struck out at him, and indeed at the outset he told police that he intended to exercise his right to silence as ‘we get into the events that happened’. Again it is thus difficult to see why he did not exercise his right to silence in this regard also.
When one listens to the audio of the conversation which occurred when the arrest rights were given and when one views the video of the interview it is plain that the accused was calm, that he was in no way overawed by the circumstances in which he found himself, that he was both comprehending and responsive, that he was fully aware of his right to silence and that he was unafraid to exercise it and that he had determined at the outset to answer some questions and not others and that he did precisely that.
In my view the combined force of these considerations is such that it excludes beyond reasonable doubt the possibility that the accused told less than the truth to the interviewing officers in the regards identified as a result of intoxication, confusion or panic, or in ignorance of his rights, or as a result of any combination of these factors and that the only explanation is that he did so deliberately to suit some purpose of his own. His overall credibility suffers accordingly.
I will confine my use of this finding to the accused’s credibility. I will not be using it in any way whatsoever as indicative of any consciousness of guilt on his part.
In summary, the accused was an unsatisfactory witness in that he prevaricated from time to time, he is at odds with other evidence that I accept, namely that of Lawrie who says that the accused alleged that Kilroy has glassed or tried to glass him first, and that he told deliberate falsehoods during the interview. I am thus not prepared to accept that anything he says on contentious issues might reasonably possibly be so.
I repeat that he is not to be found guilty merely because I reject his account of the matter and that I must nonetheless consider whether the prosecution has proved its case.
Analysis
Kobelt says the accused was holding the glass with the base in the palm of his hand and that he swung it at Kilroy’s head with a round arm action which commenced from behind his body. He says that the glass struck Kilroy just above the eye with sufficient force to break the glass. What he describes is a grip and mechanism which would be well suited to striking someone a blow to the head with the mouth of a glass with as much force as can be mustered and they are inconsistent with the accused carrying out his stated intention of merely punching Kilroy. Indeed the mechanism he describes is again entirely consistent with the accused losing his temper, as he says that he did, and forming and carrying out an intention born of anger on the spur of the moment, forcefully to swing the mouth of the glass into Kilroy’s head irrespective of whether the swing commenced at hip or shoulder height.
Catlin says that the accused thrust a spirit glass into Kilroy’s head causing him to collapse. He provides the least detail of the three eyewitnesses. He cannot say if the thrust was with a clenched fist or with a round arm action.
Dunn says that the accused was holding what he thought was a pint glass ‘as one would normally hold a glass’. He says that the accused then angled the glass forwards to about 45 degrees and pushed it upwards into Kilroy’s forehead. The mechanism which Dunn describes is also inconsistent with the accused’s stated intention of punching Kilroy and consistent with him forming and carrying out an intention to thrust the mouth of the glass into Kilroy’s head.
Where there are differences of significance between Kobelt and Dunn on the one hand and Catlin on the other, I prefer the former. My reasons for this are that Kobelt had not been drinking, he was concentrating and he was watching from a professional point of view whereas Catlin had drunk more than Dunn and both Kobelt and Dunn recall the incident in greater detail than Catlin.
The differences of significance between Kobelt and Dunn are that Kobelt describes a round arm action with a spirit glass held in the palm of the hand whereas Dunn describes an upward pushing motion with a pint glass angled forwards. I prefer Kobelt on the basis of his concentration and his professional interest in events.
This notwithstanding, both Kobelt and Dunn describe a mechanism consistent with it being the accused’s intention to strike Kilroy with the mouth of the glass rather than merely to punch him. Irrespective of the fact that they describe different mechanisms, it is beyond coincidence that they would have both formed these impressions if the accused had been merely intending to throw a punch at Kilroy.
CCTV
This brings me back to the CCTV footage.
Each camera is numbered separately. Camera No. 5 looks over the dance floor towards the bar which the accused had his back to when Kilroy first approached him. The patrons on the dance floor can be seen in the foreground of the images captured by camera 5 and the bar and the patrons in the immediate area of the bar, including Catlin, Dunn and the accused can be seen in the background.
The footage from camera 5 was shown to Kobelt, Catlin, Dunn and the accused. Each identified himself on the footage. It is obvious which man is Kilroy.
The accused can be seen reacting to Kilroy’s punch by moving forwards. Kilroy can then be seen moving backwards towards the dance floor for a few paces with the accused advancing towards him. After Kilroy reaches the dance floor he can be seen to turn backwards to his left so that the right side is presented to the camera. The accused then turns to his right so that he is facing Kilroy with his left side presented to the camera. Kilroy can then be seen to move backwards across the dance floor and out of picture. The accused can then be seen to launch (I use this word for neutrality of expression) his right hand in the direction of where Kilroy’s head must have been. It is plain to the exclusion of all other possibilities that this movement of his hand culminated in the glass breaking on Kilroy’s forehead. The situation then becomes somewhat chaotic and some of the events which followed the impact of the glass on Kilroy’s head can be seen.
The glass which was undisputedly in the accused’s right hand cannot be seen in any of the images.
I have examined and re-examined the relevant footage captured by camera 5 on several occasions, both at its ordinary speed and also frame by frame. It is plain that it was a matter of seconds between Kilroy throwing the punch and the glass striking his head. The movement of the accused’s hand occurs very quickly and when it is examined frame by frame it occupies very few frames.
The images are two dimensional, they lack clarity and people are milling about. But on very close examination of the footage I am satisfied that the movement of the accused’s right hand and arm are not inconsistent with him employing a round arm action.
My acceptance of Kobelt, the fact that it would be beyond coincidence for Kobelt and Dunn to both describe a mechanism consistent with the carrying out of an intention to bring the mouth of the glass into contact with Kilroy’s head, the fact that considerable force was plainly employed and the fact that the CCTV footage is not inconsistent with the accused employing a round arm action satisfy me that the accused was aware that the glass was in his hand and that he deliberately struck Kilroy a blow to the head with it with significant force.
The evidence and the elements of the charge
This brings me back to the elements of the charge.
First, did Kilroy suffer harm in the sense of physical harm including, but not limited to, pain? It is not disputed that he suffered four deep lacerations which required suturing as a result of the glass impacting on his head. Deep lacerations plainly amount to physical harm as that expression is ordinarily understood. He was also found to be in pain, and it is inconceivable that he would not have been. I am thus satisfied that Kilroy suffered harm within the meaning of s 21 of the Act. Indeed it is not submitted otherwise.
Secondly, did the accused cause this harm? There is no dispute that the accused deliberately launched a blow at Kilroy’s head which in turn resulted in the relevant harm. I am thus satisfied that the accused caused the harm, and again it is not submitted otherwise.
Thirdly, did the accused intend to cause harm? Even on his own account of the matter, the accused says that he intended to hurt Kilroy in self-defence for the purpose of bringing the altercation to an end. The only inference which can be drawn from this is that he was intending to cause pain in order to make Kilroy desist. Moreover, my satisfaction that the accused intended to strike Kilroy to the head with significant force with the glass permits of no inference other than that he was using this degree of force because he intended to cause pain at the very least.
Fourthly, did the accused act unlawfully, that is to say other than by way of lawful self-defence?
Section 15 of the Act relevantly provides as follows:
15 – Self defence
(1)   It is a defence to a charge of an offence if –
(a)the defendant genuinely believed the conduct to which   the charge relates   to be necessary and reasonable for a defensive purpose; and
(b)the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat and the defendant genuinely believed to exist.
(2)     ….
(3)   For the purposes of this section, a person acts for a “defensive purpose if the person acts –
(a)in self defence or in defence of another; or
(b)to prevent or terminate the unlawful imprisonment of himself, herself or another.
(4)   ....
(5)   if a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
Section 15B of the Act further provides:
15B - Reasonable proportionality
A requirement under this Division that the defendant’s conduct be (objectively) reasonably proportionate to the threat that the defendant genuinely believed to exist does not imply that the force used by the defendant cannot exceed the force used against him or her.
I have found that Kilroy threw a punch at the accused’s head immediately before the altercation commenced.
The accused said, in effect, that he genuinely believed that Kilroy was trying to hurt him and that he resolved to punch Kilroy to the head in order to bring the fight to an end. It is necessarily implicit in his evidence that he genuinely believed it was necessary and reasonable to do so. If these were his genuine beliefs it could never be said that punching Kilroy to the head was disproportionate.
I have already expressed my satisfaction that the accused knew that the glass was in his hand, that he intended to strike Kilroy to the head with it and that he proceeded to do just that.
The accused said that the blow that he struck was forceful. Kobelt described it as ‘high impact’. Striking a person a forceful blow to the head with a glass is an inherently dangerous activity which, when objectively viewed, could only ever be reasonably proportionate, and thus justified, if the striker was faced with an immediate threat of significant harm or disfigurement.
The accused does not suggest that Kilroy was armed with anything which could have caused harm and nor does anybody else. Nor does he suggest that he thought anything over and above a solid punch was necessary and reasonable to negate the threat that he thought that Kilroy then posed. The fact that Kilroy was unarmed, the fact that he had attempted to punch the accused at the bar and the fact that it is plain that he intended to punch the accused if he could after the scuffle commenced combine together to satisfy me that, in all the circumstances, the worst Kilroy could have done to the accused was to land a few punches on his head or body. I am thus satisfied that the prosecution have established that a solid punch or two would have been all that was required to negative any threat that Kilroy might have posed.
In these circumstances, and even if the accused genuinely believed that forcefully striking Kilroy to the head with the glass was both necessary and reasonable for defensive purposes, which he does not claim to have believed, I am satisfied that doing so would nonetheless, when objectively viewed, have been over and above that which was reasonably proportionate to the threat that Kilroy actually posed.
The prosecution have thus excluded self-defence beyond reasonable doubt.
I also observe in passing that the accused did not avail himself of the options of retreating, or of calling to security or to his friends for assistance and that by the time they were on the dance floor Kilroy seems to be the one on the back foot.
It necessarily follows from my satisfaction that the accused was holding the glass and that he acted unlawfully that he used the glass as an offensive weapon, that is to say that I am satisfied that he adapted it for the purpose of committing the basic offence.
Conclusion
For these reasons I find the accused guilty as charged.